USA v. Ronquillo, No. 06-50603 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-50603 Summary Calendar March 11, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JESUS MANUEL RONQUILLO, also known as Jesus Adrian Ronquillo, also known as Jesus Manuel Rodriguez, also known as Jesus Manuel Ronquillo Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-265-2 Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Jesus Manuel Ronquillo appeals the sentence that he received after he pleaded guilty to conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846. Ronquillo argues that he received ineffective assistance of trial counsel because counsel failed to argue relevant facts, circumstances, and law relative to a downward adjustment based on Ronquillo s role in the offense. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-50603 There is some question as to whether the appeal waiver in Ronquillo s plea agreement prevents him from bringing a direct appeal regarding ineffective assistance of counsel. However, because, at rearraignment, Ronquillo was informed that the waiver does not bar ineffective assistance of counsel claims and because the Government has not sought in its brief to enforce the appeal waiver, we turn to the merits of Ronquillo s appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). Claims of ineffective assistance of counsel are resolved on direct appeal only when the record allows this court to evaluate fairly the merits of the claim. United States v. Nguyen, 504 F.3d 561, 575-76 (5th Cir. 2007). The record in the instant case presents such a scenario. The record belies Ronquillo s argument that counsel did not argue facts that would support an adjustment in his offense level for a minor role in the offense. Counsel objected to the probation officer s decision not to include such an adjustment. He also argued at sentencing that Ronquillo made no money from his offense and that he was a minor participant. Moreover, the career offender guideline, U.S.S.G. § 4B1.1, authorizes only an adjustment based on acceptance of responsibility. See, e.g., United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003) (citing to First, Third, Seventh, Eighth, and Ninth Circuits). Ronquillo s argument that counsel was ineffective for failing to argue that he was entitled to an adjustment for his minor role lacks bases in fact and in law. AFFIRMED. 2
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