United States of America, Plaintiff-appellee, v. Juan Manuel Galindo-sotelo, Akas: Juan Manuel Galindo; Johngalindo, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

Juan Manuel Galindo-Sotelo appeals his 70-month sentence following his guilty plea conviction for being an illegal alien found in the United States following deportation and conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b) (2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Galindo-Sotelo contends that the district court erred by refusing to grant him a downward departure for diminished capacity, pursuant to U.S.S.G. § 5K2.13. Because Galindo-Sotelo did not raise this issue in the district court, we review for plain error, and find none. See United States v. Kaneakua, 15 F.3d 463, 468 (9th Cir. 1997). The facts before the district court do not support a downward departure based on diminished capacity. See U.S.S.G. § 5K2.13 (1995) (diminished mental capacity must have contributed to the commission of the crime); United States v. Olano, 507 U.S. 725, 737, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (stating that there must be a clear and obvious error that affects a substantial right).

Galindo-Sotelo also contends that he received ineffective assistance of counsel at his sentencing hearing. We decline to reach the merits of this claim because ineffective assistance claims are more appropriately addressed in collateral habeas proceedings. See United States v. Carr, 18 F.3d 738, 741 (9th Cir. 1994).

AFFIRMED.