United States v. Infante-Cabrera ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 10, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-50362
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNALDO RAFAEL VICENTE INFANTE-CABRERA,
also known as Juan Santos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1150-1-DB
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arnaldo Rafael Vicente Infante-Cabrera appeals his guilty
plea conviction for conspiracy to import more than 5 kilograms of
cocaine in violation of 21 U.S.C. §§ 963, 952(a), 960(a)(1) and
(b)(1)(B). Infante-Cabrera argues that the district court did
not adequately comply with FED. R. CRIM. P. 11 at his guilty-plea
hearing. He argues that the individual variances from the rule,
as well as the cumulative effect of the individual variances,
*
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that this opinion should not be published and is not precedent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. 02-50362
-2-
were clear or obvious errors that affected his substantial
rights.
After reviewing the entire record, United States v. Vonn,
535 U.S. 55, 122 S. Ct. 1043, 1046 (2002), we have determined
that none of the Rule 11 errors alleged by Infante-Cabrera
affected Infante-Cabrera’s substantial rights or affected the
fairness, integrity, or public reputation of the judicial
proceedings in this case. See United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), abrogated in part,
Johnson v. United States, 520 U.S. 461 (1997). Infante-Cabrera’s
“cumulative effect” argument is also without merit. We conclude
from the record that it is not likely that, had the district
court conducted an ideal Rule 11 plea colloquy, Infante-Cabrera’s
willingness to plead guilty would have been affected. See United
States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002).
Infante-Cabrera also argues that he received ineffective
assistance of counsel at rearraignment and at sentencing.
A claim of ineffective assistance of counsel cannot be resolved
on direct appeal when the claim has not first been raised in
the district court. United States v. Bounds, 943 F.2d 541, 544
(5th Cir. 1991). Because the district court did not make any
factual findings regarding the allegations of ineffective
assistance, an analysis of these claims would require speculation
by this court as to the reasons for counsel’s alleged acts and
omissions. See United States v. Kizzee, 150 F.3d 497, 503
No. 02-50362
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(5th Cir. 1998). We therefore decline to reach the merits of
Infante-Cabrera’s ineffective assistance of counsel claim without
prejudice to his right to present this matter to the district
court via a motion under 28 U.S.C. § 2255. See United States
v. Route, 104 F.3d 59, 64-65 (5th Cir. 1997).
AFFIRMED.