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

                                                 FILED
                                                                             May 1, 2009
                                     No. 08-50604
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOSE DE LA PAZ MUNOZ FLORES

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3;07-CR-3246-ALL


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
       Jose De La Paz Munoz Flores (Munoz) appeals following his guilty plea
conviction and 41-month sentence for one count of importation of marijuana. As
his sole issue on appeal, Munoz claims that his trial counsel rendered ineffective
assistance at sentencing for failing to object to the imposition of a two-level
enhancement for using a minor to commit the offense.
       Generally, claims of ineffective assistance of counsel “cannot be resolved
on direct appeal when [they have] not been raised before the district court since

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50604

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). The Supreme Court has emphasized that
a 28 U.S.C. § 2255 motion is the preferred method for raising a claim of
ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-04
(2003). Claims of inadequate representation are resolved on direct appeal only
in “rare” cases where the record allows a fair evaluation of the claim’s merits.
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
      We conclude that the factual issues underlying Munoz’s claim of ineffective
assistance cannot be determined on the current record. Such factual issues are
best resolved by the district court on § 2255 review. See Massaro, 538 U.S. at
505-06. Consequently, we decline to address Munoz’s ineffective assistance
claim on direct appeal.    Our decision not to address the issue is without
prejudice to Munoz raising his ineffective assistance claim in a timely § 2255
proceeding.
      AFFIRMED.




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