*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40155

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff-Appellee

versus

RICARDO JOEL GUTIERREZ, also known as "Rickey" Gutierrez

Defendant-Appellant

 

Appeal from the United States District Court

For the Southern District of Texas

USDC No. C-98-CR-283-5

 

June 15, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Ricardo Joel Gutierrez appeals his guilty-plea conviction and

sentence for aiding and abetting to possess with intent to

distribute approximately ninety kilograms of marijuana.

Gutierrez asserts that he requested the presence of counsel at

his presentence interview, that his request was denied, and that he

was harmed thereby. "On request, the defendant's counsel is

entitled to notice and a reasonable opportunity to attend any
2

interview of the defendant by a probation officer in the course of

a presentence investigation." Fed. R. Crim. P. 32(b)(2).

Gutierrez claims that he was harmed by the to failure give his

attorney notice and an opportunity to attend the presentence

interview, because he did not understand that the presentence

report held him responsible for a larger amount of marijuana

attributable to counts that were dismissed. 

Gutierrez did not object to the presentence report. When a

defendant fails to object to the presentence report we review his

claims on appeal for plain error. See United States v. Dean, 59

F.3d 1479, 1494 (5th Cir. 1995). The record does not show that

Gutierrez requested his attorney's presence at the interview or

that his attorney asked for notice and an opportunity to be

present. Furthermore, Gutierrez does not show that he failed to

understand the presentence report, so he cannot show that his

counsel's absence affected his substantial rights. At his

sentencing hearing, Gutierrez stated that he had read the

presentence report and discussed it with his counsel, who answered

all his questions. Gutierrez shows neither a violation of Rule

32(b) nor harm resulting thereby.

Gutierrez argues that the district court erred in accepting

the presentence report's finding him responsible for 680 kilograms

of marijuana rather than 90 kilograms. The 90 kilograms were

attributable to the count to which he pleaded guilty, and the rest
3

were attributable to dismissed counts. The presentence report

states that Gutierrez said that he hired others to transport

marijuana on the same date as the date on which he transported the

marijuana for which he pleaded guilty. Relevant conduct includes

conduct that was "part of the same course of conduct or common

scheme or plan as the offense of the conviction." U.S.S.G. §

1B1.3(a)(2). Gutierrez now objects to the presentencing report's

treating the fact that he hired persons to transport marijuana on

the date of the offense to which he pleaded guilty as relevant

conduct. 

Since he failed to object to the presentencing report we must

review his claim for plain error. See United States v. Dean, 59

F.3d at 1494. Plain error is error that is obvious and affects the

complaining party's substantial rights. See United States v.

Angeles-Mascote, 206 F.3d 529, 530 (5th Cir. 2000). However,

"[q]uestions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain

error." United States v. McCaskey, 9 F.3d 368, 376 (5th Cir.

1993)(quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.

1991)(alteration in original). The factual issue Gutierrez raises

on appeal cannot be plain error.

Finally, Gutierrez asserts that he was denied effective

assistance of counsel because his attorney failed to object to the

presentence report. We review a claim of ineffective assistance of
4

counsel on direct appeal only where the record allows to evaluate

the merits of the claim. See United States v. Glinsey, 209 F.3d

386, 392 (5th Cir. 2000). The record does not enable us to

evaluate the merits of this claim.

AFFIRMED.