No. 99-50737
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50737
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIZABETH TINOCO DE CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-299-01
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May 25, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Elizabeth Tinoco de Cruz (Tinoco) appeals after pleading
guilty to illegal reentry into the United States following
deportation. She argues that her attorney was ineffective at
sentencing (1) for failing to move for a downward departure under
Application Note 5 of U.S.S.G. § 2L1.2 and (2) for failing to argue
that her prior drug conviction was not an “aggravated felony” which
warranted a 16-level increase under § 2L1.2(b)(1)(A).
Although we generally do not entertain claims of ineffective
assistance on direct appeal, we feel that the record is
*
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that this opinion should not be published and is not precedent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. 99-50737
-2-
sufficiently developed to address Tinoco’s claims. See United
States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). In
Tinoco’s plea agreement, both parties stipulated (1) that a 16-
level increase was appropriate because Tinoco had previously been
deported subsequent to an aggravated-felony conviction, (2) that a
total offense level of 20 was appropriate, and (3) that Tinoco
should be sentenced at the bottom end of the corresponding
guideline range.
Given these stipulations, Tinoco has not shown that her
attorney was ineffective at sentencing for failing to argue that
Tinoco’s prior conviction was not an aggravated felony. See United
States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994)(“[An] attorney
cannot be considered deficient for failing to raise claims
knowingly and voluntarily waived in the process of plea
bargaining.”).
With respect to a downward departure under Application Note 5
of U.S.S.G. § 2L1.2, we note that Tinoco’s counsel specifically
quoted Application Note 5 in its entirety in his brief supporting
his motion for a downward departure based on the minor nature of
the defendant’s prior felony conviction. At the sentencing
hearing, however, the court specifically ruled that it did not
believe it had the discretion to downwardly depart based on
Application Note 5, and Tinoco’s counsel objected. It therefore
cannot be said that Tinoco received ineffective assistance of
counsel for a failure to raise this issue.
AFFIRMED.