United States v. Quiroz-Castro

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40847
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRESCILIANO QUIROZ-CASTRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1624-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Presciliano Quiroz-Castro appeals the sentence imposed
following his guilty plea to possession with intent to distribute
more than five kilograms of cocaine. Quiroz-Castro was sentenced
to the statutory minimum of ten years’ imprisonment. Through his
retained counsel, Quiroz-Castro contends, for the first time on
appeal, that the Government breached an oral plea agreement to
recommend a sentence below the mandatory minimum, pursuant to the
U.S.S.G. § 5C1.2 safety valve. He contends in the alternative
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2004
Charles R. Fulbruge III
Clerk

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No. 03-40847
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that he is entitled to relief from the sentence because his
counsel in the district court rendered ineffective assistance.
Quiroz-Castro has filed a pro se motion for appointment of
counsel, asserting that his counsel is requesting additional
payment to continue his representation. Inasmuch as briefing in
this case is complete, the pro se motion is DENIED.
Quiroz-Castro has not shown error in his sentence, plain or
otherwise. The oral plea agreement obligated the Government to
recommend a safety-valve reduction only if Quiroz-Castro
qualified for the safety valve, and the record supports a
determination that Quiroz-Castro did not meet his burden to show
that he qualified by debriefing truthfully. See United States v.
Miller, 179 F.3d 961, 968 (5th Cir. 1999); United States v.
Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). The record in
this case is not sufficiently developed to resolve on direct
appeal Quiroz-Castro’s claim that his counsel in the district
court rendered ineffective assistance. See United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
AFFIRMED; MOTION DENIED.

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