United States v. Lopez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 26, 2006
Charles R. Fulbruge III
Clerk
REVISED AUGUST 22, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50602
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNOLDO LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-209-ALL
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Arnoldo Lopez appeals from his conviction by guilty plea of
distribution of heroin, for which Lopez was sentenced to 35 years
of imprisonment, a sentence less the mandatory statutory term of
life imprisonment. Lopez contends that counsel was ineffective
for failing to provide accurate advice regarding the practical
meaning of Lopez’s appeal-waiver provision; that counsel was
ineffective for failing to move for the exclusion of his

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No. 05-50602
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videotaped confession; that counsel was ineffective for failing
to object to the firearm adjustment to Lopez’s offense level;
and that counsel’s ineffective actions, taken cumulatively,
demonstrated performance so deficient that prejudice should be
presumed pursuant to United States v. Cronic, 466 U.S. 648
(1984).
To prevail on an ineffective-assistance-of-counsel claim, an
applicant must show “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficient performance, the applicant must show that counsel’s
actions “fell below an objective standard of reasonableness.”
Id. at 688. To prove prejudice, the applicant must show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different,” id. at 694, and that “counsel’s deficient
performance render[ed] the result of the trial unreliable or the
proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993).
Lopez’s plea agreement contained the following provision:
The Defendant expressly waives the right to appeal his
sentence on any ground, other than for ineffective
assistance of counsel or prosecutorial misconduct of
constitutional dimension. Similarly, the Defendant
agrees not to contest his sentence or the manner in
which it was determined in any post-conviction
proceeding, including, but not limited to, a proceeding
under 28 U.S.C. § 2255.

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Lopez misreads the waiver provision. The waiver has no
effect on his ability to appeal, or seek 28 U.S.C. § 2255 relief
from, his conviction; the provision affects only his ability to
appeal, or seek § 2255 relief from, his sentence. Moreover, a
waiver provision does not preclude an appeal or a § 2255 motion
based on claims that the plea agreement or the waiver provision
were tainted by ineffective assistance. United States v. White,
307 F.3d 336, 339 (5th Cir. 2002) (§ 2255 motion); United States
v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (direct appeal).
However, the record in this case is not sufficiently developed
for us to address on direct appeal whether counsel provided Lopez
with inadequate advice regarding the waiver provision. See
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
The record is also undeveloped regarding Lopez’s remaining
ineffective-assistance contentions; we will not address those
contentions on direct appeal.
AFFIRMED.

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