United States v. Gonzalez-Capetillo

* 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that this opinion should not be published and is not precedent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
February 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40045
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA GONZALEZ-CAPETILLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-925-1
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Angela Gonzalez-Capetillo appeals her jury conviction and
sentence for conspiracy to possess more than five kilograms of
cocaine with intent to distribute and possession of more than
five kilograms of cocaine with intent to distribute. She argues
that her defense counsel had an actual conflict of interest
because he previously represented Amada Quintanilla Moralez, one
of the unindicted coconspirators in this case. Claims of
ineffective assistance of counsel cannot generally be resolved on

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No. 03-40045
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direct appeal unless they have first been raised in the district
court. United States v. Gibson, 55 F.3d 173, 179 (5th Cir.
1995). Because the issue whether defense counsel had an actual
conflict of interest was not raised in the district court, the
record is not sufficiently developed and this court cannot fairly
evaluate the merits of the ineffectiveness claim at this time.
See United States v. Kizzee, 150 F.3d 497, 503 (5th Cir. 1998).
Gonzalez-Capetillo argues that the Government was required
to, but did not, prove that she knew of the drug type and
quantity involved in the instant offense. She concedes that the
argument is foreclosed by United States v. Gamez-Gonzalez, 319
F.3d 695, 700 (5th Cir.), cert. denied, 123 S. Ct. 2241 (2003),
but states that she is raising it to preserve it for possible
Supreme Court review. In Gamez-Gonzalez, this court held that
the Government does not need to prove knowledge of the drug type
or quantity. Id. at 699-700. One panel of this court may not
overrule the decision of a prior panel in the absence of an
en banc reconsideration or a superseding Supreme Court decision.
United States v. Crouch, 51 F.3d 480, 483 (5th Cir. 1995).
AFFIRMED.

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