United States of America v. Jesus Rico-Nunez

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4347
_____________________
UNITED STATES OF AMERICA
v.
JESUS RICO-NUNEZ, Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 99-cr-00408)
District Judge: Honorable J. Curtis Joyner
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 4, 2002
Before: BECKER, Chief Judge, McKEE, and HILL,
Circuit Judges.
(Filed: November 12, 2002)
_______________________
OPINION
_______________________
BECKER, Chief Judge.
Jesus Rico-Nunez appeals from the judgment of the District Court in a criminal
case entered pursuant to a bargained-for guilty plea to Count I of the indictment charging
him with illegal re-entry into the United States after deportation. Rico-Nunez was
sentenced to a term of 60 months imprisonment near the low end of the applicable
Guidelines Range of 57-71 months. The gravamen of Rico-Nunez’s appeal is that his
guilty plea counsel was ineffective: (1) in failing to present a motion to the court
requesting a downward departure from the Sentencing Guidelines based upon time spent
in non-federal detention; and (2) in failing to present a motion to the court requesting a
downward departure from the Sentencing Guidelines based upon collateral consequences
of imprisonment suffered as an INS detainee.
Rico-Nunez’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that he is unable to raise any argument that would permit this court to
grant a new trial, arrest of judgment, or resentencing. Counsel also submits that it is well
settled that he cannot claim his own ineffectiveness, and that new counsel should be
assigned. However, the government correctly points out that the ineffective assistance
claim is untenable in this direct appeal because no record regarding these issues was
presented to the district court. More specifically, there is no information in the record
regarding the nature of Rico-Nunez’s earlier confinement, or the collateral consequences
he fears in the future, which are the bases of the ineffective assistance claim, or about
counsel’s decision-making.
We agree that this is an appropriate case for application of our settled rule that
claims of ineffective assistance of counsel, not previously developed, should not be
considered on direct appeal. See, e.g., United States v. Rieger, 942 F.2d 230, 235 (3d Cir.
1991); United States v. Sandini, 888 F.3d 300, 311-13 (3d Cir. 1989); United States v.
Sturm, 671 F.2d 749, 750 (3d Cir. 1982). Rather, "a defendant must raise ineffective
assistance of counsel in a collateral proceeding under 28 U.S.C. 2255 in order that the
district court may create a sufficient record for appellate review." Government of Virgin

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Islands v. Forte, 806 F.2d 73, 77 (3d Cir. 1986).
Under these circumstances we are constrained to affirm the judgment, without
prejudice to Rico-Nunez’s right to pursue a claim under 28 U.S.C. 2255 alleging
ineffective assistance of counsel. __________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
Edward R. Becker
Chief Judg

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