     Case: 10-50633 Document: 00511430538 Page: 1 Date Filed: 03/31/2011




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

                                                 FILED
                                                                           March 31, 2011
                                     No. 10-50633
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DERBY CARO-ALARCON, also known as Derby Alarcon-Garcia,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-3214-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges
PER CURIAM:*
       The attorney appointed to represent Derby Caro-Alarcon (“Caro”) has
moved for leave to withdraw and filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Caro has filed a response. Our independent
review of the record, counsel’s brief, and Caro’s response discloses no
nonfrivolous issue for appeal.
       Caro identifies four appealable issues in his response to the Anders brief.
We conclude that each is without merit. First, for the purpose of preserving 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 10-50633

issue for possible Supreme Court review, he argues that the continuing validity
of Almendarez-Torres v. United States, 523 U.S. 224 (1998), is questionable in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As Caro acknowledges, this
argument is foreclosed by binding Circuit precedent and does not present a
nonfrivolous issue for appeal. See, e.g., United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007).
      Next, Caro argues that the district court should have applied amendment
742 to the United States Sentencing Guidelines, which eliminated recency points
under § 4A1.1(e). However, amendment 742 took effect on November 1, 2010,
and Caro was sentenced on June 22, 2010. The district court was required to
apply the version of the Guidelines that was in effect on the date Caro was
sentenced, see 18 U.S.C. § 3553(a)(4)(ii), and amendment 742 has not been made
retroactively applicable, see U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.10(c)
(2010). The district court did not err by including recency points in Caro’s
criminal-history score.
      Third, Caro argues that the district court should have applied amendment
740 to the Guidelines, which authorizes a downward departure under § 2L1.2 on
the basis of cultural assimilation. Amendment 740 also took effect on November
1, 2010, and it, too, is not retroactive. Plus, it applies only to defendants who
“formed cultural ties primarily with the United States from having resided
continuously in the United States from childhood,” U.S. S ENTENCING G UIDELINES
M ANUAL § 2L1.2 cmt. n.8 (2010), and the PSR reflects that Caro did not come to
the United States until he was eighteen years old. In addition, Caro’s attorney
pressed a cultural assimilation argument at the sentencing hearing (albeit
without relying on amendment 740).         The district court did not abuse its
discretion by rejecting that argument: “While cultural assimilation may be
considered as a mitigating factor, there is no requirement that a sentencing
court must accord it dispositive weight.” United States v. Lopez-Veleasquez, 526
F.3d 804, 807 (5th Cir. 2008) (per curiam) (internal citation omitted).

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                                  No. 10-50633

      Finally, Caro’s response can be liberally construed to contend that his
attorney rendered constitutionally ineffective assistance of counsel by failing to
ask the district court to apply amendments 740 and 742. But where, as here, the
defendant did not raise his ineffective-assistance-of-counsel claim before the
district court, we will decline to consider that claim on direct appeal, leaving it
instead to be resolved in an § 2255 proceeding. See Massaro v. United States,
538 U.S. 500, 504–06 (2003); United States v. Gulley, 526 F.3d 809, 821 (5th Cir.
2008) (per curiam).
      Therefore, counsel’s motion for leave to withdraw is GRANTED, counsel
is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5 TH C IR. R. 42.2.




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