USA v. Fernando Perdomo-Tavera

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UNPUBLISHED OPINION FILED. [10-41186 Affirmed ] Judge: CDK , Judge: EGJ , Judge: JEG Mandate pull date is 11/01/2011 for Appellant Fernando R. Perdomo-Tavera [10-41186]

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Case: 10-41186 Document: 00511628289 Page: 1 Date Filed: 10/11/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-41186 Summary Calendar October 11, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FERNANDO R. PERDOMO-TAVERA, Defendant-Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-533-1 Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM:* Pursuant to a plea agreement, Fernando R. Perdomo-Tavera (Perdomo) pleaded guilty to a one-count indictment charging him with illegal reentry. See 8 U.S.C. § 1386. The district court sentenced him at the bottom of the advisory guidelines range to 41 months of imprisonment. Perdomo argues that his trial counsel, Pedro Garcia, was ineffective for failing to advise him that his guidelines range would be sharply increased as a result of his prior attempted murder conviction and for utterly failing 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 10-41186 Document: 00511628289 Page: 2 Date Filed: 10/11/2011 No. 10-41186 advocate for a sentence below the applicable guidelines range. The record has not been sufficiently developed to allow consideration of Perdomo’s claims of ineffective assistance of trial counsel, and Perdomo has not shown that this court should make an exception to the general rule that claims of ineffective assistance of counsel cannot be resolved on direct appeal. See United States v. Cantwell, 470 F.3d 1087, 1091 (2006). A postconviction motion pursuant to 28 U.S.C. § 2255 is the appropriate vehicle for Perdomo’s claim that trial counsel was ineffective. Massaro v. United States, 538 U.S. 500, 504-06 (2003). AFFIRMED. 2

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