     Case: 12-20694       Document: 00512439361         Page: 1     Date Filed: 11/13/2013




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

                                                                            FILED
                                                                        November 13, 2013
                                     No. 12-20694
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN ALVAREZ GAMEZ, also known as Martin Alvarez, also known as
Martin Carlos-Gamez, also known as Martin Alvarez-Gamez, also known as
Juan Garcia-Rivera, also known as Martin Carlos Alvarez-Gamez, also known
as Carlos Alvarez, also known as Martin Gamez Alvarez, also known as Eduardo
Gamez Alvarez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-559-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Martin Alvarez Gamez pleaded guilty to illegal reentry of a deported alien
after an aggravated felony conviction. He was sentenced to 78 months of
imprisonment and no term of supervised release. Gamez argues that his guilty
plea was not knowing and voluntary because trial counsel failed to recognize,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20694     Document: 00512439361      Page: 2   Date Filed: 11/13/2013

                                  No. 12-20694

investigate, and advise him about a potential defense to his offense of conviction.
Specifically, he contends that although counsel did investigate and advise him
of a possible defense based on derivative citizenship, counsel did not recognize,
investigate, and advise him that he may have had a possible defense to the
illegal reentry charge based on acquisition of citizenship at birth.
      Gamez did not raise this ineffective assistance of counsel claim in the
district court. “[T]he general rule in this circuit is that a claim for 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.” United States v. Cantwell, 470 F.3d
1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted).
Because we conclude that “we cannot fairly evaluate the claim from the record,”
we decline to consider Gamez’s ineffective assistance of counsel claim on appeal
without prejudice to his right to raise the claim in a timely 28 U.S.C. § 2255
proceeding. See United States v. Gulley, 526 F.3d 809, 821-22 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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