                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                             May 10, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 06-50097
                              Summary Calendar


                          UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                      versus

JOSE DE JESUS HERNANDEZ BETANCOURT, also known as Jose Hernandez,

                                                      Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                          (3:05-CR-1082-ALL)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose    De   Jesus    Hernandez    Betancourt   appeals   his     46-month

sentence following his guilty-plea conviction for one count of mail

fraud.      Hernandez     contends:      for   sentencing,   the    Government

withheld exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 87 (1963); the district court erred by failing to

order its disclosure and using, at sentencing, it to calculate the

amount of loss and number of victims; and his counsel rendered

ineffective assistance (IAC) by failing to obtain that evidence.


     *
       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this opinion should not be published and is not precedent except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.
     Because Hernandez fails to show the exculpatory nature of the

documents he requested, his Brady claim is without merit.        See

United States v. Moore, 452 F.3d 382, 387 (5th Cir.), cert. denied,

127 S. Ct. 423 (2006).

     To the extent Hernandez challenges the sentencing findings,

his claim is barred by the appeal waiver in his plea agreement.

See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).    His

claim that the district court erred in failing to order the

disclosure of exculpatory evidence is without merit because, as

noted, he fails to show the exculpatory nature of the requested

documents.

     Finally, because Hernandez did not assert IAC in district

court, there was no opportunity to develop a record on the issue.

Accordingly, we decline to review the claim on direct appeal.    See

United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).

                                                          AFFIRMED




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