     Case: 10-50064     Document: 00511597457         Page: 1     Date Filed: 09/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 9, 2011
                                     No. 10-50064
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDUARDO JOSE PAEZ-ROCHA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-2626-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Eduardo Jose Paez-Rocha appeals the 70-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation. He
asserts that his attorney rendered ineffective assistance of counsel by failing to
request a variance or downward departure on the basis of cultural assimilation.
Paez-Rocha argues that the record supports that a variance or downward
departure likely was warranted in light of his familial and cultural ties to the
United States, the duration of his presence in the United States, and his limited

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-50064

criminal history. He contends that counsel’s failure to request a variance or
downward departure precluded the district court from considering whether
sentencing leniency was warranted on the basis of cultural assimilation.
      Claims of ineffective assistance of counsel usually “cannot be resolved on
direct appeal when [they have] not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). Absent a record, an appeals court may
have no way to know if a “seemingly misguided action by counsel had a sound
strategic motive or was taken because the counsel’s alternatives were even
worse.” Massaro v. United States, 538 U.S. 500, 505 (2003). Moreover, without
factual development, an appellate court may not be able to determine if an
alleged error was prejudicial. Id.
      Although we do not have counsel’s reasons for failing to request a variance
or a downward departure, we conclude that this case presents the unusual case
in which it is proper to consider a claim of ineffective assistance on direct appeal
because the record supports that a motion for a variance or downward departure
on the basis of cultural assimilation would not have been successful. The district
court opted to impose a within-guidelines sentence despite having before it the
necessary facts to decide whether a variance or departure was warranted based
upon Paez-Rocha’s cultural assimilation. The facts relating to Paez-Rocha’s
cultural assimilation were clearly delineated in the PSR, which the district court
adopted, and counsel and Paez-Rocha both mentioned Paez-Rocha’s cultural
assimilation in their allocutions. Further, before pronouncing sentence, the
district court specifically identified cultural assimilation as a basis for a variance
or departure and indicated that it had considered Paez-Rocha’s cultural
assimilation in its sentencing decision. Most significantly, although the court
noted that counsel should have moved for a variance or departure on the basis
of cultural assimilation, the court expressly stated that, if counsel had made

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                                No. 10-50064

such a motion, it would not have been granted. Thus, we conclude that the
record shows that Paez-Rocha was not prejudiced by counsel’s failure to request
a variance or downward departure on the basis of cultural assimilation. See
Strickland v. Washington, 466 U.S. 668, 694, 697 (1984).
      The judgment of the district court is AFFIRMED.




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