                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 96-20811
                          Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JOSE ALFONSO MONTEROSA-GARCIA,

                                          Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. H-95-CR-261-1
                        - - - - - - - - - -
                           July 24, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

     Jose Alfonso Monterosa-Garcia has appealed his conviction

and sentence for conspiring to possess cocaine with intent to

distribute.    Monterosa contends that he should be permitted to

withdraw his guilty plea or that specific performance of his plea

agreement with the Government should be ordered because of the

failure of the Government for move for a downward departure

pursuant to U.S.S.G. § 5K1.1.    Monterosa, as the party alleging a

breach of the plea agreement, bears the burden of proving the

underlying facts establishing a breach by a preponderance of the

     *
       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this opinion should not be published and is not precedent except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. 96-20811
                                 - 2 -

evidence.    United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th

Cir. 1993).    The Government did not agree to request a downward

departure pursuant to § 5K1.1.     The Government did request at

sentencing that Monterosa be sentenced as if he had a criminal

history category I in order that Monterosa might be sentenced

under § 5C1.2 to a term of imprisonment below the statutory

minimum.    The district court denied the request because of the

circumstances of the case, especially the quantity of drugs

involved.    The Government asked for a departure and the request

was refused.     There was no breach of an agreement between the

Government and Monterosa and there is no unfulfilled obligation

which the Government could be ordered to perform.

     Monterosa argues that he should be permitted to withdraw his

guilty plea because his attorney rendered ineffective assistance

in advising him that he would be entitled to be sentenced under

the “safety valve” provision of § 5C1.2.     Generally, a claim of

ineffective assistance of counsel cannot be resolved on direct

appeal when the claim has not been raised before the district

court since no opportunity existed to develop the record on the

merits of the allegations.     See United States v. Higdon, 832 F.2d

312, 313-14 (5th Cir. 1987).      A 28 U.S.C. § 2255 motion is the

proper avenue for raising such a claim.     See United States v.

Smith, 844 F.2d 203, 206 (5th Cir. 1988).

     AFFIRMED.
