Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Jose Moises HIGUERA, Defendant-Appellant.

No. 89-50147.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 7, 1990.* Decided Dec. 19, 1990.



Jose Moises Higuera-Uriarte ("Higuera") appeals his conviction after a jury trial for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


A. Whether Appellant May Raise Ineffective Assistance of Counsel Claim on Direct Appeal

Higuera contends on appeal that he received ineffective assistance from his trial counsel. In his brief, he points to numerous instances where trial counsel allegedly mishandled his case.

Parties usually challenge defense counsel's effectiveness in a federal criminal trial through a habeas corpus motion pursuant to 28 U.S.C. § 2255. United States v. Birges, 723 F.2d 666, 670 (9th Cir. 1984), cert. denied, 466 U.S. 943 (1984) and 469 U.S. 863 (1984). "Challenge by way of a habeas corpus proceeding is preferable as it permits the defendant to develop a record as to what counsel did, why it was done, and what, if any, prejudice resulted." United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988).

This court will review a claim on direct appeal where trial counsel clearly provided such inadequate legal representation that a defendant was denied his sixth amendment right to counsel. United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989), modified, 902 F.2d 18 (9th Cir.), cert. denied, 111 S. Ct. 64 (1990). Our review, however, reveals no such exceptional circumstances. Accordingly, we decline to consider Higuera's claim of ineffective assistance of counsel on direct appeal.

Higuera's defense was that the government agents entrapped him by inducing him to act unlawfully. Once a defendant introduces evidence of entrapment as an affirmative defense, the government must establish beyond a reasonable doubt that the defendant was predisposed to commit the crime. See United States v. Stenberg, 803 F.2d 422, 431 (9th Cir. 1986). Higuera contends that the government failed to meet its burden of proof. He did not raise this issue before the district court.

"As a general rule we will not consider an argument presented for the first time on appeal." Id. Moreover, the question of entrapment is ordinarily a question for the jury. Id. at 432. In any event, however, there is ample evidence in the record from which a reasonable jury could find that Higuera was predisposed to commit the crimes of which he was convicted and that he was not entrapped. The government presented evidence that Higuera was the one who initiated discussions with the confidential informant for the purchase of substantial amounts of cocaine, that Higuera expected to earn for himself a $75,000 secret commission in the transaction, and that he was a willing participant throughout.

C. Whether the District Court Abused Its Discretion in Imposing a Fine as Part of Higuera's Criminal Sentence

Higuera argues that the district court abused its discretion by imposing a $50,000 fine on him at the time of sentencing. Trial courts have "virtually unfettered discretion" in determining appropriate sentences. United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988). In addition, " [t]he sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review." Id.

The statutory penalties for convictions under 21 U.S.C. §§ 841(a) and 846 allow for the imposition of fines of up to $4,000,000 for individual defendants. 21 U.S.C. § 841(b) (1) (A). Thus, the district court was well within the statutory limits. Moreover, the record indicates the district court judge considered the Probation Department's recommendation of a $50,000 fine and determined that it had correctly assessed the monetary penalty. Thus, Higuera's claim for abuse of discretion must fail.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3