* 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opinion should not be published and is not precedent except under the limited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

_________________

No. 97-40622

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN SAUCEDO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(C-96-CR-280)

 

April 9, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Juan Saucedo appeals his guilty-plea conviction for possession

with intent to distribute of 90 kilograms of marijuana in violation

of 21 U.S.C. § 841(b)(1)(C). The Government has filed a motion to

dismiss the appeal for lack of jurisdiction, arguing that Saucedo’s

“motion for a new trial” was filed untimely and was not the proper

procedure for challenging a guilty plea. The Government further
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argues that filing the motion did not toll the period for filing a

notice of appeal, thereby rendering Saucedo’s filing of his notice

of appeal untimely. Because Saucedo filed his motion within the

ten-day appeal period, we treat it as a motion for reconsideration

of the district court’s final judgment. See United States v.

Lewis, 921 F.2d 563, 564 (5th Cir. 1991). The district court

therefore erred in construing the motion as a 28 U.S.C. § 2255

petition. As a motion for reconsideration extends the time for

filing a notice of appeal until the motion is denied, see id.,

Saucedo’s notice of appeal was timely. The Government’s motion to

dismiss Saucedo’s appeal is DENIED.

Saucedo’s brief evinces the intent to appeal the district

court’s orders denying his motion for a new trial and his “motion

to strike proceedings.” See United States v. Sacerio, 952 F.2d

860, 863 n.1 (5th Cir. 1992); United States v. Ramirez, 932 F.2d

374, 375 (5th Cir. 1991). Therefore, this court has jurisdiction

to review the orders denying both motions.

Saucedo argues that his counsel was ineffective because he

failed to investigate the quantity of marijuana involved in the

offense. Saucedo allegedly told his counsel that he only

transported 120 pounds of marijuana, while the Government indicted

him for transporting approximately 200 pounds. He also argues that

his counsel failed to investigate inconsistencies in the amount of

marijuana in the Presentence Report. Saucedo further argues that

his guilty plea was involuntary because his counsel did not advise

him that the amount of marijuana could affect his sentence. Saucedo
 

1 Although the district court held a hearing on Saucedo’s

motion for new trial, inclement weather prevented Saucedo and his

new attorney from attending the hearing. The district court

nonetheless went forward with the hearing, allowing Saucedo’s

former attorney to testify in narrative form at the hearing.

Saucedo later made a “motion to strike proceedings” to have this

hearing stricken, which the district court denied. Although

Saucedo has also appealed the denial of the “motion to strike

proceedings,” we deny this motion because we can determine as a

matter of law without regard to evidence presented at this hearing

that his ineffective assistance of counsel claim is meritless. Cf.

United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995) (holding

that a district court does not need to hold an evidentiary hearing

on an ineffective assistance claim where the claim is meritless as

a matter of law).

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raised these claims below, and the record is sufficiently developed

for this court to consider them. See United States v. Gibson, 55

F.3d 173, 179 (5th Cir. 1995).

To prevail on his ineffective assistance of counsel claim,

Saucedo must establish: (1) that his counsel’s performance was

deficient in that it fell below an objective standard of

reasonableness; and (2) that the deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 688, 694, 104 S.

Ct. 2052, 2068, 2080 (1984). Saucedo failed to provide any

evidence to the district court or on appeal to support this claim,

other than his one conclusory statement.1 Indeed, he admits that

he did not know exactly how much marijuana he was

transporting))only that “they” told him that he would be carrying

120 pounds. Moreover, the government repeatedly weighed the

marijuana; any minor discrepancies in weight such as may have

existed would not have affected his classification under the

sentencing guidelines. Finally, the sentence Saucedo actually

received after downward adjustments and a further downward
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departure by the district court is within the range of possible

sentences Saucedo would have received had the court found him to

have possessed 120 pounds of marijuana. Thus, Saucedo has failed

to establish any prejudice, and we reject this claim. 

To the extent Saucedo argues that his guilty plea was

involuntary because he was not advised of the possible sentence he

could receive, the record indicates that Saucedo’s guilty plea was

knowingly and voluntarily entered after the district court complied

with Fed. R. Civ. P. 11 by determining whether his plea was

coerced, and advising him of his constitutional rights, the nature

of the charges, the consequences of his guilty plea, and the

statutory maximum punishment. See United States v. Johnson, 1 F.3d

296, 298-300 (5th Cir. 1993) (en banc). We accordingly reject this

claim as well.

AFFIRMED; GOVERNMENT’S MOTION TO DISMISS APPEAL FOR LACK OF

JURISDICTION DENIED.