                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2008

USA v. Aguirre
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1377




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Recommended Citation
"USA v. Aguirre" (2008). 2008 Decisions. Paper 1610.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1610


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                                           NOT PRECEDENTIAL




     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 05-1377


       UNITED STATES OF AMERICA

                      v.

             CARLOS AGUIRRE
                       Appellant




      On Appeal From the United States
                 District Court
         For the District of New Jersey
     (D.C. Crim. Action No. 04-cr-00496)
 District Judge: Hon. Dickinson R. Debevoise


Submitted Pursuant to Third Circuit LAR 34.1(a)
              February 12, 2008

     BEFORE: SLOVITER, SMITH and
       STAPLETON, Circuit Judges

          (Filed: February 13, 2008 )
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Appellant Carlos Aguirre pled guilty to using a telephone to facilitate a conspiracy

to distribute cocaine. He was sentenced to 48 months of incarceration. He now appeals

that sentence, arguing (1) that he received ineffective assistance of counsel during the

sentencing phase of his case in the District Court, (2) that the District Court erred in

declining to grant a departure from the Guideline range because of extraordinary family

circumstances, and (3) that the District Court also erred in failing to grant a departure on

the ground that his offense constituted aberrant behavior.

       Aguirre’s ineffective assistance of counsel claim was not raised in the District

Court and, as a result, the record was not developed on the issues raised by that claim. In

such situations, we decline to review ineffective assistance of counsel claims on direct

appeal and insist that they be addressed initially in the trial court in a collateral review

proceeding under 28 U.S.C. § 2255, see, e.g., United States v. Haywood, 155 F.3d 674,

678 (3d Cir. 1995).

       We lack jurisdiction “to review discretionary decisions [of a sentencing court] to

deny departures, unless for allegations of legal error.” United States v. Cooper, 437 F.3d

324, 332 (3d Cir. 2006).

                                               2
       For the foregoing reasons, we will affirm the judgment of the District Court

without prejudice to Aguirre pursuing his ineffective assistance of counsel claim in a

proceeding under 28 U.S.C. § 2255.




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