### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 s e ntence 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 su p p o rts that a variance or downward departure likely was warranted in light of his familial and cultural ti e s to the United States, the duration of his presence in the United States, and his limited U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 9 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR
. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR
. R. 47.5 .4. Case: 10-50064 Document: 00511597457 Page: 1 Date Filed: 09/09/2011No. 10-50064

c riminal history. He contends that counsel’s failure to request a vari a n c e o r 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
o p p ortunity existed to develop the record on the merits of the allegations.” United States v. Ca n t w ell , 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and citation omitted). Absent a record, an appeals court may have no way t o k n o w if a “seemingly misguided action by counsel had a sound strategic motive o r 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 co u rt 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 c u lt u r al assimilation. The facts relating to Paez-Rocha’s cultural assimilation were clearly delineated in the PSR, which the district court adopted, and counsel a n d Paez-Rocha both mentioned Paez-Rocha’s cultural assimilation in their allocutions. Further, before pronouncing sentence , the district court specifically identified cultural a s si milation as a basis for a variance

or departure and indicated that it had c onsidered Paez-Rocha’s cultural assimilation in its sentencing decis i o n . Most significantly, although the court noted that counsel should have moved for a variance or departure on the basis of cultural assimilation, the c o u rt e xp r essly stated that, if counsel had made
2 Case: 10-50064 Document: 00511597457 Page: 2 Date Filed: 09/09/2011No. 10-50064

such a motion, it would not have been granted. Thu s , we conclude that the record shows that Paez-Rocha was not prejudiced by counsel’s failure to request
a variance or downward depart u re 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.

3 Case: 10-50064 Document: 00511597457 Page: 3 Date Filed: 09/09/2011