United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2007
Charles R. Fulbruge III
Clerk
No. 06-50097
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS HERNANDEZ BETANCOURT, also known as Jose Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:05-CR-1082-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose De Jesus Hernandez Betancourt appeals his 46-month
sentence following his guilty-plea conviction for one count of mail
fraud. Hernandez contends: for sentencing, the Government
withheld exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 87 (1963); the district court erred by failing to
order its disclosure and using, at sentencing, it to calculate the
amount of loss and number of victims; and his counsel rendered
ineffective assistance (IAC) by failing to obtain that evidence.
*
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this opinion should not be published and is not precedent except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.
Because Hernandez fails to show the exculpatory nature of the
documents he requested, his Brady claim is without merit. See
United States v. Moore, 452 F.3d 382, 387 (5th Cir.), cert. denied,
127 S. Ct. 423 (2006).
To the extent Hernandez challenges the sentencing findings,
his claim is barred by the appeal waiver in his plea agreement.
See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). His
claim that the district court erred in failing to order the
disclosure of exculpatory evidence is without merit because, as
noted, he fails to show the exculpatory nature of the requested
documents.
Finally, because Hernandez did not assert IAC in district
court, there was no opportunity to develop a record on the issue.
Accordingly, we decline to review the claim on direct appeal. See
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
AFFIRMED
2