No. 99-40737
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40737
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN DELACRUZ FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CR-49-1
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April 13, 2000
Before WIENER, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Juan Delacruz Flores appeals his conviction and sentence
following a guilty plea for possession with intent to distribute
approximately 22 kilograms of marijuana in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(D) and 18 U.S.C. § 2. Flores argues that
his attorney rendered ineffective assistance because he failed to
file a pretrial motion to suppress evidence obtained pursuant to
a search warrant. Flores alleges instances of illegal police
activity: (1) the agents made a number of questionable traffic
stops; (2) the agents conducted surveillance of Flores’ residence
*
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that this opinion should not be published and is not precedent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. 99-40737
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which amounted to the protracted viewing of the rear of his
residence from a neighbor’s back yard; (3) agents spoke to
Flores’ girlfriend inside his residence; (4) Flores’ girlfriend
volunteered incriminating statements during this interview; and
(5) the agents conducted a security sweep of the residence during
which they looked under a mostly closed garage door and used
their flashlights to observe a large television with a fan
blowing on it and noticed the odor of spray paint in the garage
as well as the odor of marijuana from a trash can in the driveway
of Flores’ residence. Flores contends that the information
obtained by this illegal police activity tainted the search
warrant.
The record is not adequately developed to allow this court
to fairly evaluate the merits of Flores’ ineffective assistance
of counsel claim on direct appeal. See United States v.
Brewster, 137 F.3d 853, 859 (5th Cir.), cert. denied, 119 S. Ct.
247 (1998). An ineffective assistance of counsel claim
ordinarily is pursued in a 28 U.S.C. § 2255 motion. See United
States v. Medina, 118 F.3d 371, 373 & n.2 (5th Cir. 1997).
Accordingly, the district court’s judgment is AFFIRMED without
prejudice to Flores’ ineffective assistance claim.