United States Court of Appeals

for the Fifth Circuit

No. 20-10467

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Michael Adam Delapena, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CR-22-2

Before Barksdale, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Michael Adam Delapena pleaded guilty, without the benefit of a plea 

agreement, to conspiracy to possess, with intent to distribute, a controlled 

substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). On 

appeal, he asserts for the first time that his plea was not knowing and 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2021

Lyle W. Cayce

Clerk

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No. 20-10467

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voluntary, because, inter alia, he was confused by the magistrate judge’s use 

of a group-plea hearing. Along that line, he also claims his counsel provided 

ineffective assistance. 

Because Delapena did not raise in district court his challenge to his 

plea, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 

537, 546 (5th Cir. 2012). Under that standard, Delapena must show a 

forfeited plain error (clear or obvious error, rather than one subject to 

reasonable dispute) that affected his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the 

discretion to correct the reversible plain error, but generally should do so only 

if it “seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings”. Id.

Delapena has not shown the requisite clear or obvious error. See id.

The record shows his guilty plea was a “voluntary, knowing, and intelligent 

act”. See United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). The 

magistrate judge conducted an extensive plea colloquy during which 

Delapena expressed his desire to plead guilty, acknowledged he was not being 

forced to do so, and admitted to the acts alleged in the indictment and factual 

resume. Delapena did not object to the group-plea hearing and does not point 

to any specific violation of Federal Rule of Criminal Procedure 11 by the 

magistrate judge. See United States v. Salazar-Olivares, 179 F.3d 228, 229–

30 (5th Cir. 1999). Moreover, he has not demonstrated that, “but for the 

[alleged] error, he would not have entered the plea”. See United States v. 

Dominguez Benitez, 542 U.S. 74, 83 (2004).

Regarding Delapena’s claim that his plea was invalid due to ineffective 

assistance of counsel, such a claim ordinarily “cannot be resolved on direct 

appeal when the claim has not been raised before the district court since no 

opportunity existed to develop the record on the merits of the allegations”.

United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal 

quotation marks and citation omitted). (The requisite opportunity was not 

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3

provided by Delapena’s 28 U.S.C. § 2255 motion, including his supporting 

affidavit, for which he was granted an out-of-time appeal.) This is not one of 

those “rare cases” where the record allows our court to fairly evaluate the 

merits of the claim. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 

1992) (citation omitted). We therefore decline to consider Delapena’s 

ineffective-assistance claim, without prejudice to his right to seek collateral 

review.

AFFIRMED.

Case: 20-10467 Document: 00515759883 Page: 3 Date Filed: 02/26/2021