USA v. Dora Cantu Chapa

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USA v. Dora Cantu Chapa

Doc. 0

Case: 09-40217

Document: 00511218577

Page: 1

Date Filed: 08/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40217 S u m m a r y Calendar August 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. D O R A OLGA CANTU CHAPA, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:08-CR-1591-1

O N REMAND FROM THE SUPREME COURT OF THE UNITED STATES B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* D o r a Olga Cantu Chapa appealed her guilty plea conviction for t r a n s p o r t in g an undocumented alien for private financial gain by means of a m o t o r vehicle, in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2. This court a ffir m e d the conviction, ruling in part that Cantu Chapa's claim that ineffective a s s is t a n c e of counsel rendered her guilty plea involuntary was foreclosed by our

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

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Document: 00511218577 Page: 2 No. 09-40217

Date Filed: 08/30/2010

p r e c e d e n t . The Supreme Court vacated the decision in this case and remanded t o this court for further consideration in light of Padilla v. Kentucky.1 C a n t u Chapa asserts that her guilty plea was involuntary since her c o u n s e l rendered ineffective assistance. She argues that her attorney was

in e ffe c t iv e because he failed to inform her that a conviction would almost c e r t a in ly result in deportation. Cantu Chapa raises this argument for the first t im e on appeal. C a n t u Chapa's ineffective assistance claim is not properly before us. We h a v e explained that an ineffective assistance of counsel claim "is not reviewable o n direct appeal because it has not been addressed by the district court, and the r e c o r d has not been fully developed."2 While the Padilla holding shows that C a n t u Chapa's claim may satisfy the constitutional deficiency prong of a S tr ic k la n d v. Washington3 ineffective assistance of counsel analysis, we cannot fu lly address the claim here, since the record is not sufficiently developed so as t o consider the prejudice prong of the Strickland analysis. We therefore decline t o consider this claim without prejudice to Cantu Chapa's ability to raise it in a § 2255 motion. C a n t u Chapa also contends that the magistrate judge and district court c o m m it t e d reversible error by failing to advise her of (1) her right to be r e p r e s e n t e d by counsel, appointed if necessary, at trial and every other stage of

Chapa v. United States, -- S.Ct. --, 2010 WL 1130167, at *1 (2010) (Mem.) (citing Padilla v. Kentucky, 130 S.Ct. 1473 (2010)). United States v. Sevick, 234 F.3d 248, 251 (5th Cir. 2000); see also United States v. London, 568 F.3d 553, 562 (5th Cir. 2009) ("The general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been before the district court since no opportunity existed to develop the record on the merits of the claim.").
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466 U.S. 668 (1984).

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t h e proceedings,4 and (2) her right to be protected from compelled selfin c r im in a t io n .5 Plain error review applies to this issue.6 Cantu Chapa has not s h o w n , as required by United States v. Dominguez Benitez,7 that these errors a ffe c t e d her substantial rights.

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T h e judgment of the district court is AFFIRMED.

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See FED. R. CRIM. P. 11(b)(1)(D). See FED. R. CRIM. P. 11(b)(1)(E). See United States v. Vonn, 535 U.S. 55, 59 (2002). 542 U.S. 74, 83 (2004).

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