United States of America v. Carlos Aguirre

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1377
UNITED STATES OF AMERICA
v.
CARLOS AGUIRRE
Appellant
On Appeal From the United States
District Court
For the District of New Jersey
(D.C. Crim. Action No. 04-cr-00496)
District Judge: Hon. Dickinson R. Debevoise
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 12, 2008
BEFORE: SLOVITER, SMITH and
STAPLETON, Circuit Judges
(Filed: February 13, 2008 )

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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Carlos Aguirre pled guilty to using a telephone to facilitate a conspiracy
to distribute cocaine. He was sentenced to 48 months of incarceration. He now appeals
that sentence, arguing (1) that he received ineffective assistance of counsel during the
sentencing phase of his case in the District Court, (2) that the District Court erred in
declining to grant a departure from the Guideline range because of extraordinary family
circumstances, and (3) that the District Court also erred in failing to grant a departure on
the ground that his offense constituted aberrant behavior.
Aguirre’s ineffective assistance of counsel claim was not raised in the District
Court and, as a result, the record was not developed on the issues raised by that claim. In
such situations, we decline to review ineffective assistance of counsel claims on direct
appeal and insist that they be addressed initially in the trial court in a collateral review
proceeding under 28 U.S.C. § 2255, see, e.g., United States v. Haywood, 155 F.3d 674,
678 (3d Cir. 1995).
We lack jurisdiction “to review discretionary decisions [of a sentencing court] to
deny departures, unless for allegations of legal error.” United States v. Cooper, 437 F.3d
324, 332 (3d Cir. 2006).

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For the foregoing reasons, we will affirm the judgment of the District Court
without prejudice to Aguirre pursuing his ineffective assistance of counsel claim in a
proceeding under 28 U.S.C. § 2255.

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