     Case: 15-50918      Document: 00513594216         Page: 1    Date Filed: 07/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50918
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 15, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JAVIER LUJAN GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-496-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Javier Lujan Garcia pleaded guilty to one count of being found in the
United States following deportation. The district court implicitly denied Lujan
Garcia’s request for a downward variance and sentenced him within the
advisory guidelines range to 41 months in prison, to be followed by a three-
year term of nonreporting supervised release. Lujan Garcia argues on appeal
that his trial counsel rendered ineffective assistance by failing to argue at


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50918    Document: 00513594216     Page: 2   Date Filed: 07/15/2016


                                 No. 15-50918

sentencing the points that were raised in the defense sentencing
memorandum, failing to request specific relief, and failing to object on the
record at sentencing to preserve Lujan Garcia’s appellate arguments.          In
addition, Lujan Garcia complains that his trial counsel’s failure to specify how
double counting his criminal history affected the sentence imposed constituted
ineffective assistance and that combining the double counting argument with
Lujan Garcia’s family situation made the request for a downward variance
unclear.
      This court generally does not review claims of ineffective assistance of
counsel on direct appeal. United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014). We have “undertaken to resolve claims of inadequate representation on
direct appeal only in rare cases where the record allowed us to evaluate fairly
the merits of the claim.” United States v. Higdon, 832 F.2d 312, 314 (5th Cir.
1987). In most instances, we qualify a claim as a “rare case” warranting review
only when it was raised and developed in a post-trial motion to the district
court. United States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007). Lujan
Garcia did not raise these ineffective assistance claims in the district court at
any time. Because the record is not sufficiently developed to allow for a fair
consideration of these claims, we decline to consider them on direct appeal
without prejudice to Lujan Garcia’s right to raise them on collateral review.
See Isgar, 739 F.3d at 841. Accordingly, the judgment of the district court is
AFFIRMED.




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