     Case: 17-10451      Document: 00514498851         Page: 1    Date Filed: 06/04/2018




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

                                    No. 17-10451                                FILED
                                  Summary Calendar                           June 4, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

URIEL AGUIRRE-ARZATE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-291-2


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Uriel Aguirre-Arzate pleaded guilty to possessing with intent to
distribute methamphetamine. See 21 U.S.C. § 841(a), (b)(1)(C). The district
court varied below the range advised by the Sentencing Guidelines and
imposed a 180-month term of imprisonment. Also, the court imposed a three-
year term of supervised release. On appeal, Aguirre-Arzate contends that
counsel rendered ineffective assistance by not objecting to the firearms


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10451     Document: 00514498851      Page: 2   Date Filed: 06/04/2018


                                  No. 17-10451

enhancement of his base offense level and to a prosecutorial comment at
sentencing that Aguirre-Arzate thought prejudicial.
      A proceeding under 28 U.S.C. § 2255 is the favored forum for litigating
federal prisoners’ claims of ineffective assistance of counsel. Massaro v. United
States, 538 U.S. 500, 504-09 (2003). We adjudicate “claims of inadequate
representation on direct appeal only in rare cases where the record” permits a
fair evaluation of the claims. United States v. Higdon, 832 F.2d 312, 314 (5th
Cir. 1987).
      The record before us is devoid of information about any strategic
decisions concerning sentencing challenges and about any agreements between
Aguirre-Arzate and counsel in that regard. Additionally, in light of Aguirre-
Arzate’s assertion that counsel’s omissions influenced the court’s sentence
selection, the recollections of the district court about sentencing factors and its
choice of a variance sentence may inform the analysis of the ineffectiveness
claims. See Massaro, 538 U.S. at 506; see also Friedman v. United States, 588
F.2d 1010, 1015 n.7 (5th Cir. 1979).
      Aguirre-Arzate’s notions about what factors swayed the district court in
imposing its sentence may or may not be correct, but the record as now
constituted does not allow us to judge that matter fairly. See Massaro, 538
U.S. at 504-09; see also United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
In sum, Aguirre-Arzate does not present any justification for “an exception to
[the] general rule of non-review” on direct appeal. United States v. Stevens,
487 F.3d 232, 245 (5th Cir. 2007). Accordingly, we decline to consider the
ineffectiveness claims on direct appeal without prejudice to Aguirre-Arzate’s
right to assert them on collateral review. See Isgar, 739 F.3d at 841.
      The judgment of the district court is AFFIRMED.




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