IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50064

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO JOSE PAEZ-ROCHA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-2626-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Eduardo Jose Paez-Rocha appeals the 70-month sentence imposed

following his guilty plea conviction for illegal reentry following deportation. He

asserts that his attorney rendered ineffective assistance of counsel by failing to

request a variance or downward departure on the basis of cultural assimilation. 

Paez-Rocha argues that the record supports that a variance or downward

departure likely was warranted in light of his familial and cultural ties to the

United States, the duration of his presence in the United States, and his limited

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2011

Lyle W. Cayce

Clerk

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.

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criminal history. He contends that counsel’s failure to request a variance or

downward departure precluded the district court from considering whether

sentencing leniency was warranted on the basis of cultural assimilation. 

Claims of ineffective assistance of counsel usually “cannot be resolved on

direct appeal when [they have] 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). Absent a record, an appeals court may

have no way to know if a “seemingly misguided action by counsel had a sound

strategic motive or was taken because the counsel’s alternatives were even

worse.” Massaro v. United States, 538 U.S. 500, 505 (2003). Moreover, without

factual development, an appellate court may not be able to determine if an

alleged error was prejudicial. Id.

Although we do not have counsel’s reasons for failing to request a variance

or a downward departure, we conclude that this case presents the unusual case

in which it is proper to consider a claim of ineffective assistance on direct appeal

because the record supports that a motion for a variance or downward departure

on the basis of cultural assimilation would not have been successful. The district

court opted to impose a within-guidelines sentence despite having before it the

necessary facts to decide whether a variance or departure was warranted based

upon Paez-Rocha’s cultural assimilation. The facts relating to Paez-Rocha’s

cultural assimilation were clearly delineated in the PSR, which the district court

adopted, and counsel and Paez-Rocha both mentioned Paez-Rocha’s cultural

assimilation in their allocutions. Further, before pronouncing sentence, the

district court specifically identified cultural assimilation as a basis for a variance

or departure and indicated that it had considered Paez-Rocha’s cultural

assimilation in its sentencing decision. Most significantly, although the court

noted that counsel should have moved for a variance or departure on the basis

of cultural assimilation, the court expressly stated that, if counsel had made

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No. 10-50064

such a motion, it would not have been granted. Thus, we conclude that the

record shows that Paez-Rocha was not prejudiced by counsel’s failure to request

a variance or downward departure on the basis of cultural assimilation. See

Strickland v. Washington, 466 U.S. 668, 694, 697 (1984).

The judgment of the district court is AFFIRMED.

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