USA v. Jorge Garcia-Cisneros

Filing 511138127

USA v. Jorge Garcia-Cisneros

Doc. 511138127

Case: 09-50602

Document: 00511138127

Page: 1

Date Filed: 06/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50602 S u m m a r y Calendar June 10, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e , v ersu s J O R G E ADRIAN GARCIA-CISNEROS, D e f e n d a n t -A p p e l la n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:08-CR-1626-2

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:*

J o r g e Garcia-Cisneros appeals his sentence following a guilty plea of poss e s s i n g a controlled substance with intent to distribute. He argues that his atPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 09-50602

Document: 00511138127 Page: 2 No. 09-50602

Date Filed: 06/10/2010

t o r n e y was ineffective for failing to object that evidence considered at sentencing w a s obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). A defend a n t who has pleaded guilty retains the right against providing self-incriminato r y sentencing information. Mitchell v. United States, 526 U.S. 314, 322-30 (1 9 9 9 ). As a general rule, we do not review claims of ineffective assistance of couns e l that are raised for the first time on direct appeal, because there has not been a n opportunity to develop the record. United States v. Cantwell, 470 F.3d 1087, 1 0 9 1 (5th Cir. 2006). In this case, however, the record is adequate to allow a fair e v a lu a tio n of the merits of the claim. United States v. Nguyen, 504 F.3d 561, 575 (5 t h Cir. 2007). To prevail on a claim of ineffective assistance, a defendant must s h o w that (1) his attorney's performance fell below an objective standard of reas o n a b len ess and (2) the deficient performance prejudiced his defense. Strickland v . Washington, 466 U.S. 668, 689-94 (1984). The prejudice requirement requires a showing "that there is a reasonable probability that, but for counsel's unprofe s s io n a l errors, the result of the proceeding would have been different. A reas o n a b le probability is a probability sufficient to undermine confidence in the outc o m e . " Id. at 694. Garcia-Cisneros contends that counsel should have objected that statem e n ts Garcia-Cisneros made to prison officer Edgar de Leon on two occasions w e re obtained in violation of Miranda. We disagree. Garcia-Cisneros did not inc r im in a t e himself in his first interview with de Leon, and that interview was term in a te d when Garcia-Cisneros said he did not want to proceed without talking w it h his lawyer. Garcia-Cisneros cannot show that he was prejudiced by couns e l's failure to object that his client was not given Miranda warnings before that in te r v ie w . Washington, 466 U.S. at 694. With regard to the second conversation w it h de Leon, the uncontroverted evidence shows that Garcia-Cisneros waived h is Miranda rights by initiating the conversation and spontaneously making a s e lf-in c r im in a to r y statement. See Edwards v. Arizona, 451 U.S. 477, 485-886 2

Case: 09-50602

Document: 00511138127 Page: 3 No. 09-50602

Date Filed: 06/10/2010

(1 9 8 1 ); Miranda, 384 U.S. at 478. Counsel was not ineffective for failing to make a meritless objection. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). AFFIRMED.

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