* 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that this opinion should not be published and is not precedent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. 97-51038

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MARIO NARANJO-ARELLANO,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-97-CR-16-ALL-H

- - - - - - - - - -

September 1, 1998

Before KING, GARWOOD and SMITH, Circuit Judges.

PER CURIAM:*

Jesus Mario Naranjo-Arellano was convicted by a jury of

illegally reentering the United States following deportation, a

violation of 8 U.S.C. § 1326 (West 1970 & 1998 Supp.). NaranjoArellano appeals his conviction.

Naranjo-Arellano first contends that the district court

abused its discretion by denying appointed counsel’s motion to

withdraw. We review the district court’s decision to deny

counsel’s motion to withdraw for an abuse of discretion. United

States v. Wild, 92 F.3d 304, 306 (5th Cir. 1996).
No. 97-51038

-2-

The Sixth Amendment “does not guarantee an absolute right to

the counsel of one's choice." United States v. Paternostro, 966

F.2d 907, 912 (5th Cir. 1992). “A defendant is entitled to

counsel capable of rendering competent, meaningful assistance in

the preparation and trial of the pending charges,” however, a

defendant has no right to an attorney “who agrees with the

defendant’s personal view of the prevailing law” and “who will

docilely do as he is told.” United States v. Moore, 706 F.2d

538, 540 (5th Cir. 1983). The record demonstrates no abuse of

discretion in the district court’s decision to deny NaranjoArellano’s second appointed attorney's motion to withdraw. 

Naranjo-Arellano next contends that his attorney provided

ineffective assistance because counsel did not challenge the

fundamental fairness of the deportation hearing; file timely

discovery motions; raise Naranjo’s “challenged mental status” as

a defense; object, as violative of due process, to the district

court’s alleged “mocking interrogation” of Naranjo; and reurge

the motion to withdraw. The present record is insufficiently

developed to allow a fair evaluation of the merits of the abovementioned ineffective assistance of counsel claims. See United

States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). 

Accordingly, we decline to review Naranjo-Arellano’s Sixth

Amendment claims of ineffective assistance of counsel on direct

appeal. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir.

1995).

Naranjo-Arellano contends that the district court

interrogated him in a manner which prevented him from informing
No. 97-51038

-3-

the court of the conflict with his attorney and from raising

viable defenses. Naranjo-Arellano contends that the district

court’s treatment of him demonstrated a lack of impartiality and

resulted in a denial of due process. Because Naranjo-Arellano

raises this issue for the first time on direct appeal, our review

is limited to plain error only. See United States v. Jackson, 50

F.3d 1335, 1340 n.6 (5th Cir. 1995) (issue which is not raised in

district court is reviewed for plain error). 

A federal judge need not act merely as a moderator of the

proceedings. United States v. Moore, 598 F.2d 439, 442 (5th Cir.

1979). The district judge may comment on the evidence, clarify

facts presented, maintain the pace of the parties, and interrupt

the parties. Id. The record demonstrates that the district

court acted with lenience and allowed Naranjo-Arellano, who was

represented by counsel, the opportunity to state his position to

the court on numerous occasions. Naranjo admits that none of the

conversations of which he complains occurred in the presence of

the jury. The district court’s conduct had no effect on the

jury’s verdict. The district court showed no lack of

impartiality, and Naranjo-Arellano has not shown prejudice. See 

United States v. Wallace, 32 F.3d 921, 928 (5th Cir. 1994)

(improper comments do not entitle defendant to new trial unless

the comments are substantial error and prejudicial to the case). 

To the extent that Naranjo-Arellano alleges that the district

court prevented him from challenging the conviction that formed

the basis for his prior deportation, he did not assert in the

district court, and he has not asserted in this court, any basis
No. 97-51038

-4-

for a challenge to the constitutionality of those proceedings. 

Naranjo-Arellano has not shown error, much less plain error with

respect to this contention. 

Finally, Naranjo-Arellano contends that the district court

denied him due process by refusing to consider his claims of

selective and/or vindictive prosecution. Naranjo-Arellano has

not established a prima facie selective-prosecution claim because

he has not shown that "he was singled-out for prosecution while

others similarly situated who committed the same crime were not

prosecuted," and he has not alleged that the government's

discriminatory selection of him for prosecution was done in bad

faith. United States v. Sparks, 2 F.3d 574, 580 (5th Cir. 1993). 

Accordingly, Naranjo-Arellano was not entitled to a hearing. See

United States v. Cooks, 52 F.3d 101, 105 & n. 24 (5th Cir.

1995)(no abuse of discretion in denying hearing absent prima

facie case of selective prosecution). 

Naranjo-Arellano’s allegation that the prosecutor acted to

punish him for the exercise of his right to free speech by

bringing more severe charges based on the same course of conduct

is not supported by the record. See United States v. Ward, 757

F.2d 616, 619 (5th Cir. 1985). The indictment was filed before

Naranjo-Arellano voiced his contentions. The district court

allowed Naranjo-Arellano to present his contentions to the court

and to the jury. Naranjo-Arellano has not shown a violation of

due process.

Accordingly, Naranjo-Arellano’s conviction and sentence are

AFFIRMED.