United States v. Zapata De Pena

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 9, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10520
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA DE LA LUZ ZAPATA DE PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:02-CR-00038-ALL-C
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Maria De La Luz Zapata De Pena argues on direct appeal that
she received ineffective assistance of counsel during sentencing
when counsel failed to secure a ruling on her motion for downward
departure, depriving her of a possible ground for appeal. This
court generally declines to review ineffective assistance of
counsel claims on direct appeal. United States v. Gibson, 55
F.3d 173, 179 (5th Cir. 1995). The court has “undertaken to
resolve claims of inadequate representation on direct appeal only

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No. 03-10520
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in rare cases where the record allowed [the court] to evaluate
fairly the merits of the claim.” United States v. Higdon, 832
F.2d 312, 314 (5th Cir. 1987). Because Zapata De Pena’s claims
are based on a failure to secure a ruling on a motion and no
record has been developed below, her case is not one of those
rare exceptions. See United States v. Valuck, 286 F.3d 221, 229
(5th Cir.), cert. denied, 537 U.S. 1000 (2002); United States v.
Gordon, 346 F.3d 135, 136-37 (5th Cir. 2003). Any ineffective
assistance claim she may wish to bring may be brought in a 28
U.S.C. § 2255 motion. The judgment of the district court is
AFFIRMED.

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