                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 9, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-10520
                        Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

MARIA DE LA LUZ ZAPATA DE PENA,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                  USDC No. 6:02-CR-00038-ALL-C
                      --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Maria De La Luz Zapata De Pena argues on direct appeal that

she received ineffective assistance of counsel during sentencing

when counsel failed to secure a ruling on her motion for downward

departure, depriving her of a possible ground for appeal.       This

court generally declines to review ineffective assistance of

counsel claims on direct appeal.    United States v. Gibson, 55

F.3d 173, 179 (5th Cir. 1995).    The court has “undertaken to

resolve claims of inadequate representation on direct appeal only

     *
        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that this opinion should not be published and is not precedent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. 03-10520
                                -2-

in rare cases where the record allowed [the court] to evaluate

fairly the merits of the claim.”   United States v. Higdon, 832

F.2d 312, 314 (5th Cir. 1987).   Because Zapata De Pena’s claims

are based on a failure to secure a ruling on a motion and no

record has been developed below, her case is not one of those

rare exceptions.   See United States v. Valuck, 286 F.3d 221, 229

(5th Cir.), cert. denied, 537 U.S. 1000 (2002); United States v.

Gordon, 346 F.3d 135, 136-37 (5th Cir. 2003).   Any ineffective

assistance claim she may wish to bring may be brought in a 28

U.S.C. § 2255 motion.   The judgment of the district court is

AFFIRMED.
