United States Court of Appeals

for the Fifth Circuit

No. 21-10515

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Miguel Angel Saustegui-Perez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CR-376-4

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

The attorney appointed to represent Miguel Angel Saustegui-Perez

has moved for leave to withdraw and has filed a brief in accordance with 

Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 

229 (5th Cir. 2011). Saustegui-Perez has filed a response. 

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opinion should not be published and is not precedent except under the limited 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

November 18, 2021

Lyle W. Cayce

Clerk

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2

In his response, Saustegui-Perez asserts on several grounds that he 

was denied the effective assistance of counsel at trial and on appeal. To 

prevail on a claim of ineffective assistance of counsel, an appellant must 

demonstrate that his attorney’s performance was deficient, and the deficient

performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 

668, 687 (1984). However, a 28 U.S.C. § 2255 proceeding is the favored 

forum for litigating a federal prisoner’s claims of ineffective assistance of 

counsel. Massaro v. United States, 538 U.S. 500, 503-09 (2003). We will 

consider a claim of ineffective assistance of counsel on direct appeal “only in 

rare cases in which the record allows [us] to fairly evaluate the merits of the 

claim.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (internal 

quotation marks and citation omitted). 

Among Saustegui-Perez’s arguments are claims that he was denied 

the effective assistance of counsel because (1) his trial attorney did not object 

during the guilty plea colloquy to the magistrate judge’s alleged failure to 

comply with Federal Rule of Criminal Procedure 11(b)(1)(D), (H), and (M); 

(2) the cumulative effects of his trial attorney’s ineffective assistance during 

the guilty plea colloquy and the magistrate judge’s Rule 11 errors rendered 

his guilty plea and waiver of appeal invalid; and (3) his appellate counsel 

rendered ineffective assistance by failing to argue that he was not precluded 

by the appeal waiver from arguing in a § 2255 proceeding that his trial 

counsel’s ineffective assistance affected the knowing and voluntary nature of 

his guilty plea. The record is sufficient for us to fairly evaluate the merits of 

those claims. 

Appellate counsel did not perform deficiently by failing to address the 

scope of Saustegui-Perez’s appeal waiver as to a § 2255 proceeding. That 

issue is irrelevant to whether Saustegui-Perez has a nonfrivolous issue that 

he may raise on direct appeal.

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The record reveals only one Rule 11 violation. When advising 

Saustegui-Perez that he had a right to counsel, the magistrate judge did not 

explain that the right extended to all stages of the proceeding and an attorney 

would be appointed if necessary. See Fed. R. Crim. P. 11 (b)(1)(D). Even 

if Saustegui-Perez’s attorney was deficient for failing to object to that 

omission, there is nothing to indicate by a reasonable probability that, but for 

counsel’s deficient performance, Saustegui-Perez would not have entered a 

guilty plea. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). As such, SausteguiPerez’s ineffective assistance of counsel claims regarding alleged Rule 11 

errors do not present a nonfrivolous issue for appeal. 

The record is not sufficiently developed for this court to consider the 

merits of Saustegui-Perez’s remaining claims of ineffective assistance of 

counsel. We decline to consider those claims without prejudice to SausteguiPerez raising them in a § 2255 proceeding. See Isgar, 739 F.3d 841. 

Having reviewed counsel’s brief, Saustegui-Perez’s response and 

allegations of error in the district court proceedings, and the relevant portions 

of the record, we concur with counsel’s assessment that Saustegui-Perez’s

appeal presents no nonfrivolous issue for appellate review. Accordingly, the 

motion for leave to withdraw is GRANTED, counsel is excused from 

further responsibilities herein, and the APPEAL IS DISMISSED. See

5th Cir. R. 42.2.

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