IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-50604
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE DE LA PAZ MUNOZ FLORES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3;07-CR-3246-ALL
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jose De La Paz Munoz Flores (Munoz) appeals following his guilty plea
conviction and 41-month sentence for one count of importation of marijuana. As
his sole issue on appeal, Munoz claims that his trial counsel rendered ineffective
assistance at sentencing for failing to object to the imposition of a two-level
enhancement for using a minor to commit the offense.
Generally, claims of ineffective assistance of counsel “cannot be resolved
on direct appeal when [they have] not been raised before the district court since
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50604
no opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). The Supreme Court has emphasized that
a 28 U.S.C. § 2255 motion is the preferred method for raising a claim of
ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-04
(2003). Claims of inadequate representation are resolved on direct appeal only
in “rare” cases where the record allows a fair evaluation of the claim’s merits.
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
We conclude that the factual issues underlying Munoz’s claim of ineffective
assistance cannot be determined on the current record. Such factual issues are
best resolved by the district court on § 2255 review. See Massaro, 538 U.S. at
505-06. Consequently, we decline to address Munoz’s ineffective assistance
claim on direct appeal. Our decision not to address the issue is without
prejudice to Munoz raising his ineffective assistance claim in a timely § 2255
proceeding.
AFFIRMED.
2