IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51038
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MARIO NARANJO-ARELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-97-CR-16-ALL-H
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September 1, 1998
Before KING, GARWOOD and SMITH, Circuit Judges.
PER CURIAM:*
Jesus Mario Naranjo-Arellano was convicted by a jury of
illegally reentering the United States following deportation, a
violation of 8 U.S.C. § 1326 (West 1970 & 1998 Supp.). Naranjo-
Arellano appeals his conviction.
Naranjo-Arellano first contends that the district court
abused its discretion by denying appointed counsel’s motion to
withdraw. We review the district court’s decision to deny
counsel’s motion to withdraw for an abuse of discretion. United
States v. Wild, 92 F.3d 304, 306 (5th Cir. 1996).
*
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that this opinion should not be published and is not precedent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.
No. 97-51038
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The Sixth Amendment “does not guarantee an absolute right to
the counsel of one's choice." United States v. Paternostro, 966
F.2d 907, 912 (5th Cir. 1992). “A defendant is entitled to
counsel capable of rendering competent, meaningful assistance in
the preparation and trial of the pending charges,” however, a
defendant has no right to an attorney “who agrees with the
defendant’s personal view of the prevailing law” and “who will
docilely do as he is told.” United States v. Moore, 706 F.2d
538, 540 (5th Cir. 1983). The record demonstrates no abuse of
discretion in the district court’s decision to deny Naranjo-
Arellano’s second appointed attorney's motion to withdraw.
Naranjo-Arellano next contends that his attorney provided
ineffective assistance because counsel did not challenge the
fundamental fairness of the deportation hearing; file timely
discovery motions; raise Naranjo’s “challenged mental status” as
a defense; object, as violative of due process, to the district
court’s alleged “mocking interrogation” of Naranjo; and reurge
the motion to withdraw. The present record is insufficiently
developed to allow a fair evaluation of the merits of the above-
mentioned ineffective assistance of counsel claims. See United
States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
Accordingly, we decline to review Naranjo-Arellano’s Sixth
Amendment claims of ineffective assistance of counsel on direct
appeal. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir.
1995).
Naranjo-Arellano contends that the district court
interrogated him in a manner which prevented him from informing
No. 97-51038
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the court of the conflict with his attorney and from raising
viable defenses. Naranjo-Arellano contends that the district
court’s treatment of him demonstrated a lack of impartiality and
resulted in a denial of due process. Because Naranjo-Arellano
raises this issue for the first time on direct appeal, our review
is limited to plain error only. See United States v. Jackson, 50
F.3d 1335, 1340 n.6 (5th Cir. 1995) (issue which is not raised in
district court is reviewed for plain error).
A federal judge need not act merely as a moderator of the
proceedings. United States v. Moore, 598 F.2d 439, 442 (5th Cir.
1979). The district judge may comment on the evidence, clarify
facts presented, maintain the pace of the parties, and interrupt
the parties. Id. The record demonstrates that the district
court acted with lenience and allowed Naranjo-Arellano, who was
represented by counsel, the opportunity to state his position to
the court on numerous occasions. Naranjo admits that none of the
conversations of which he complains occurred in the presence of
the jury. The district court’s conduct had no effect on the
jury’s verdict. The district court showed no lack of
impartiality, and Naranjo-Arellano has not shown prejudice. See
United States v. Wallace, 32 F.3d 921, 928 (5th Cir. 1994)
(improper comments do not entitle defendant to new trial unless
the comments are substantial error and prejudicial to the case).
To the extent that Naranjo-Arellano alleges that the district
court prevented him from challenging the conviction that formed
the basis for his prior deportation, he did not assert in the
district court, and he has not asserted in this court, any basis
No. 97-51038
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for a challenge to the constitutionality of those proceedings.
Naranjo-Arellano has not shown error, much less plain error with
respect to this contention.
Finally, Naranjo-Arellano contends that the district court
denied him due process by refusing to consider his claims of
selective and/or vindictive prosecution. Naranjo-Arellano has
not established a prima facie selective-prosecution claim because
he has not shown that "he was singled-out for prosecution while
others similarly situated who committed the same crime were not
prosecuted," and he has not alleged that the government's
discriminatory selection of him for prosecution was done in bad
faith. United States v. Sparks, 2 F.3d 574, 580 (5th Cir. 1993).
Accordingly, Naranjo-Arellano was not entitled to a hearing. See
United States v. Cooks, 52 F.3d 101, 105 & n. 24 (5th Cir.
1995)(no abuse of discretion in denying hearing absent prima
facie case of selective prosecution).
Naranjo-Arellano’s allegation that the prosecutor acted to
punish him for the exercise of his right to free speech by
bringing more severe charges based on the same course of conduct
is not supported by the record. See United States v. Ward, 757
F.2d 616, 619 (5th Cir. 1985). The indictment was filed before
Naranjo-Arellano voiced his contentions. The district court
allowed Naranjo-Arellano to present his contentions to the court
and to the jury. Naranjo-Arellano has not shown a violation of
due process.
Accordingly, Naranjo-Arellano’s conviction and sentence are
AFFIRMED.