United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 12, 2004
Charles R. Fulbruge III
Clerk
No. 00-41187 c/w
No. 03-40146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL LONGORIA-CONTRERAS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
(M-93-CR-99-1)
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Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Rafael Longoria-Contreras (Longoria)
pleaded guilty to conspiracy to possess with intent to distribute
over 1000 kilograms of marihuana and over five kilograms of cocaine
and to maintain locations in which to store the controlled
substances prior to distribution. He was sentenced to 156 months
of imprisonment and five years of supervised release and was
ordered to pay a $17,500 fine. As a result of Longoria’s 28 U.S.C.
*
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this opinion should not be published and is not precedent except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.
§ 2255 motion, he was granted permission to take this direct appeal
out of time.
Longoria argues that this case should be remanded for the
district court to determine the ineffective assistance claims
raised in his 28 U.S.C. § 2255 motion that were dismissed without
prejudice by the district court. He contends that these issues go
to the validity of his conviction and that, given the extensive
history of this case, equity and efficiency require that these
matters be addressed prior to his direct appeal. In his
application to this court for a certificate of appealability (COA)
from the dismissal without prejudice of those claims, Longoria did
not argue that exceptional circumstances existed warranting their
resolution prior to his direct appeal. We denied a COA; and
Longoria has not shown that he is entitled to revisit these issues
here. Because, as Longoria concedes, the record regarding his
ineffective assistance claims was not adequately developed in the
district court, these claims will not be addressed on direct
appeal. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir.
1992).
Longoria contends that the quantity of drugs should have been
proven as an element of the offense and that Apprendi v. New
Jersey, 530 U.S. 466 (2000), renders 21 U.S.C. § 841 and, by
reference, 21 U.S.C. § 846, unconstitutional. As Longoria
concedes, these arguments are foreclosed by United States v.
Slaughter, 238 F.3d 580 (5th Cir. 2000).
Longoria also asserts that the district court erred in
sentencing him by imposing a fine and by imposing the four-level
enhancement in U.S.S.G. § 3B1.1(a). Although the district court
originally expressed concern regarding the assets from which
Longoria could pay a fine, the court subsequently concluded that
there was sufficient evidence in the presentence investigation
report (PSR) to support the imposition of the fine. The court
specifically cited the large sums of money that were paid to
Longoria in the course of the drug conspiracy. Longoria did not
refute this information, and his unsworn assertion, through
counsel, that he did not have any assets left at the time of
sentencing is insufficient to rebut the information in the PSR.
See United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
Likewise, Longoria has not shown that the district court clearly
erred in applying the four-level enhancement for his having been a
leader or organizer of criminal activity involving five or more
participants or that was otherwise extensive. See United States v.
Cooper, 274 F.3d 230, 247 (5th Cir. 2001).
AFFIRMED.