     Case: 10-50390     Document: 00511575485         Page: 1     Date Filed: 08/18/2011




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

                                                                            FILED
                                                                          August 18, 2011
                                     No. 10-50390
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

HECTOR RAUL MEDINA-MARQUEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:09-CR-415-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Hector Raul Medina-Marquez appeals his guilty-plea conviction and 60-
month sentence for illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326. Medina contends his counsel was ineffective by failing: to admonish him
that his guilty plea would result in deportation; and to object to the 16-level,
crime-of-violence enhancement. He also contends the district court violated his
due-process rights by incorrectly applying the advisory Sentencing Guidelines.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50390    Document: 00511575485      Page: 2    Date Filed: 08/18/2011

                                  No. 10-50390

      Ineffective-assistance-of-counsel claims “cannot be litigated on direct
appeal, unless they were adequately raised in the district court”. United States
v. Rivas, 157 F.3d 364, 369 (5th Cir. 1998) (citation and internal quotation
marks omitted). “If the claim is raised for the first time on appeal, the court will
reach the merits of the claim only in rare cases where the record [allows the
court] to evaluate fairly the merits of the claim.” Id. (citation and internal
quotation marks omitted).
      In a motion to withdraw as counsel on appeal, Medina’s counsel stated
generally that Medina had requested such new counsel because his attorney was
ineffective. Medina’s ineffective-assistance-of-counsel claim, however, was not
adequately raised in district court, and the record was not sufficiently developed
to evaluate fairly the merits of the claim. See United States v. Bounds, 943 F.2d
541, 544 (5th Cir. 1991).
      Regarding Medina’s due-process contention, the Government asserts that
this claim is barred by the plea agreement in which Medina waived the right to
appeal his sentence. The validity of an appeal waiver is reviewed de novo.
United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). An appeal-waiver
provision in a plea agreement is valid if: the waiver was knowing and voluntary;
and it applies to the circumstances at hand. United States v. Bond, 414 F.3d
542, 544 (5th Cir. 2005). To be knowing and voluntary, Medina must know he
had the right to appeal and that he was giving up that right. United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
      Medina entered into a plea agreement which stated that he had a right to
appeal and that he was giving up that right subject to certain exceptions. At
rearraignment, he testified that he reviewed the plea agreement, signed it, and
that he was pleading guilty freely and voluntarily. Moreover, Medina stated
that he understood that, as part of the plea agreement, he waived his right to
appeal or to collaterally attack the conviction and sentence.         Accordingly,
because the waiver was knowing, voluntary, and applies to the circumstances at

                                         2
   Case: 10-50390   Document: 00511575485     Page: 3   Date Filed: 08/18/2011

                                 No. 10-50390

hand, his due-process-violation assertion is barred by the appeal-waiver
provision in his plea agreement. See id. at 292-93; FED. R. CRIM. P. 11(b)(1)(N).
      AFFIRMED.




                                       3
