* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 12, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-41187 c/w

No. 03-40146

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL LONGORIA-CONTRERAS,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Southern District of Texas

(M-93-CR-99-1)

--------------------

Before JOLLY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Rafael Longoria-Contreras (Longoria)

pleaded guilty to conspiracy to possess with intent to distribute

over 1000 kilograms of marihuana and over five kilograms of cocaine

and to maintain locations in which to store the contr olled

substances prior to distribution. He was sentenced to 156 months

of imprisonment and five years of supervised release and was

ordered to pay a $17,500 fine. As a result of Longoria’s 28 U.S.C.§ 2255 motion, he was granted permission to take this direct appeal

out of time.

Longoria argues that this case should be remanded for the

district court to determine the ineffectiv e assistance claims

raised in his 28 U.S.C. § 2255 motion that were dismissed without

prejudice by the district court. He contends that these issues go

to the validity of his conviction and that, given the extensive

history of this case, equity and efficiency require that these

matters be addressed prior to his direct appeal. In his

application to this court for a certificate of appealability (COA)

from the dismissal without prejudice of those claims, Longoria did

not argue that exceptional circumstances existed warranting their

resolution prior to his direct appeal. We denied a COA; and

Longoria has not shown that he is entitled to revisit these issues

here. B ecause, as Longoria concedes, the record regarding his

ineffective assistance claims was not adequately developed in the

district court, these claims will not be addressed on direct

appeal. S ee United States v. Navejar

, 963 F.2d 732, 735 (5th Cir.

1992).

Longoria contends that the quantity of drugs should have been

proven as an element of the offense and that A pprendi v. Ne w

Jersey

, 530 U.S. 466 (2000), renders 21 U.S.C . § 841 and, by

reference, 21 U.S.C. § 846, unconstitutional. As Longoria

concedes, these a rguments are foreclosed by U nited States v.

Slaughter , 238 F.3d 580 (5th Cir. 2000).Longoria also asserts that the district court erred in

sentencing him by imposing a fine and by imposing the four-level

enhancement in U.S. S.G. § 3B1.1(a). Although the district court

o riginally expressed concern regarding the assets from wh ich

Longoria could pay a fine, the court su bsequently concluded that

there was sufficient evidence in the presentence inve stigation

report (PSR) to support the imposit ion of the fine. The court

specifically cited the large sums of money that were paid to

Longoria in the course of the drug conspiracy. Longoria did not

refute this information, and his unsworn assertion, through

counsel, that he di d not have any assets left at the time of

sentencing is insufficient to rebut the i nformation in the PSR.

See United States v. Ayala , 47 F.3d 688, 690 (5th Cir. 1995).

Likewise, Longoria has not shown that the district court clearly

erred in applying the four-level enhancement for his having been a

leader or organizer of c riminal activity involving five or more

participants or that was otherwise extensive. S ee United States v.

Cooper , 274 F.3d 230, 247 (5th Cir. 2001).

AFFIRMED.