                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 21, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41710
                           Summary Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

LETICIA CALVILLO

                       Defendant - Appellant

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 2:04-CR-442-1
                         --------------------

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Leticia Calvillo appeals her guilty-plea conviction and

sentence for transporting illegal aliens in violation of 8 U.S.C.

§ 1324(a).     Calvillo argues that trial counsel was ineffective

because he advised her to sign a plea agreement that waived any

right she had to have facts used in calculating her sentence

charged in the indictment and proven to a jury beyond a

reasonable doubt.     She argues that, given the legal landscape at

the time of her plea, counsel should not have let her agree to


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41710
                                 -2-

this waiver in the plea agreement and that he should have

objected at the sentencing hearing to the mandatory aspect of the

sentencing guidelines and to the enhancements under the

guidelines that were used to calculate her sentence.    Finally,

she argues that her sentence violated United States v. Booker,

125 S. Ct. 738 (2005), because it was enhanced based upon facts

not proven to a jury or proved beyond a reasonable doubt.

     The general rule in this circuit is that claims of

ineffective assistance will not be considered on direct appeal

“when, as here, it was not raised in the district court, because

there has been no opportunity to develop record evidence on the

merits of the claim.”    United States v. Lampazianie, 251 F.3d

519, 527 (5th Cir. 2001); see also Massaro v. United States,

538 U.S. 500, 504-05 (2003).    We conclude that a motion brought

under 28 U.S.C. § 2255 would be preferable to direct appeal for

deciding Calvillo’s claim of ineffective assistance.    See

Massaro, 538 U.S. at 504-05.

     Calvillo argues that the exception to her appeal waiver for

upward departures applies to her Booker argument because the

district court’s finding that she transported 10 aliens increased

her guidelines range, thereby constituting a departure.   We have

previously rejected a similar argument.    See United States v.

McKinney, __ F.3d __, No. 04-41223, 2005 WL 887153 at *2-3 (5th

Cir. Apr. 15, 2005).

     APPEAL DISMISSED.
