IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50355
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR HERNANDEZ-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Texas
USDC Nos. P-95-CV-62, P-92-CR-74-1
July 24, 1998
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.*
PER CURIAM:
Cesar Hernandez-Rodriguez, federal prisoner #55916-080,
appeals from the denial of his motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. He contends
that his appellate counsel was ineffective for failing to raise a
Batson claim. He also argues, for the first time on appeal, that
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the district court erred in omitting to grant him a downward
departure for his post-offense rehabilitative efforts and for being
a deportable alien. Finally, he contends, also for the first time
on appeal, that he qualifies for the “safety valve” provision of
U.S.S.G. § 5C1.2.
Hernandez’s ineffective assistance of counsel claim is
unavailing because he has failed to demonstrate any prejudice as a
result of his counsel’s omission. See Strickland v. Washington,
466 U.S. 668, 687 (1984). As for his other claims, a thorough
review of the record reveals no reversible error. See United
States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United
States v. Flores-Ochoa, 139 F.3d 1022, 1023 (5th Cir. 1998),
petition for cert. filed, (May 22, 1998) (No. 98-9199). And, as to
these claims, even if it were appropriate to follow Flores-Ochoa
rather than Cervantes, and even if there were plain error, which
there is not, there is nothing which seriously affects the
fairness, integrity, or public reputation of the proceedings, and
this Court would not exercise its discretion to “correct” any of
the forfeited purported errors. United States v. Olano, 507 U.S.
725, 735-36 (1993).
AFFIRMED
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