United States v. Chavez ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51224
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CHAVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CR-913-2-DB
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September 17, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alejandro Chavez appeals his guilty-plea conviction for
importation of marijuana in violation of 21 U.S.C. §§ 952(a) and
960(a)(1). Chavez argues that the district court erred in using
a juvenile adjudication to increase his criminal history score
under § 4A1.2 of the United States Sentencing Guidelines.
Chavez’ plea agreement contains a provision in which Chavez
waived his right to appeal his sentence unless the sentence was
the result of an upward departure. We have reviewed the record
*
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that this opinion should not be published and is not precedent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. 98-51224
-2-
and conclude that the waiver was informed and voluntary and is
therefore binding on Chavez. See United States v. Portillo, 18
F.3d 290, 292 (5th Cir. 1994). Chavez’ argument that the
district court erred in increasing his criminal history score on
the basis of a juvenile adjudication under § 4A1.2 is barred by
the waiver-of-appeal provision. See Portillo, 18 F.3d at 292.
As to the sentencing issue, the appeal is dismissed. See United
States v. Gaitan, 171 F.3d 222, 223 (5th Cir. 1999); 5th Cir.
R. 42.2.
Chavez also argues that he received ineffective assistance
of counsel at the sentencing hearing because his counsel did not
request a downward departure on the basis that the technical
application of the Sentencing Guidelines overstated the
seriousness of his criminal history. To prove ineffective
assistance, Chavez must show both that his counsel’s performance
fell below an objective standard of reasonableness, and that, but
for counsel’s unprofessional errors, there is a reasonable
probability the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-688, 694
(1984). Regardless whether the assistance provided by Chavez’
trial counsel was deficient, Chavez’ claim must fail because he
has not met his burden to show prejudice. See United States v.
Flores-Ochoa, 139 F.3d 1022, 1024-1025 (5th Cir.), cert. denied,
118 S. Ct. 2383 (1998). As to the ineffective assistance of
counsel issue, the judgment of the district court is affirmed.
DISMISSED IN PART; AFFIRMED IN PART