UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 97-40126 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANA YUBY PAYAN-PAZ,

Defendant-Appellant.

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Appeal from the United States District Court for the Eastern District of Texas (USDC No. 1:94-CV-409) _________________________________________________________________

January 15, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Ana Yuby Payan-Paz appeals the denial of her

motion to vacate or correct her sentence. As part of a plea

agreement, she pleaded guilty to conspiracy to distribute cocaine

and was sentenced to 151 months imprisonment. She asserts that her

guilty plea was not intelligently and voluntarily given because she

did not understand the consequences of pleading guilty and that the

Government breached the plea agreement. She contends also that she

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. was denied effective assistance of counsel at the trial, appellate,

and post-conviction levels.

Appellant maintains that she did not understand the

consequences of pleading guilty and that the Government secured her

plea agreement under false pretenses. She is apparently asserting

that she did not understand the amount of cocaine for which she

could be held accountable and that the Government breached the

agreement because she was sentenced based on 18 1/4 kilograms, when

she only pleaded guilty to distribution of five kilograms and the

evidence demonstrated that the most with which she was involved was

10 1/4 kilograms. The contention that the Government breached the

plea agreement was not raised in district court; therefore, we

review only for plain error. E.g., United States v. Calverley,

(5th Cir. 1994) (en banc), cert. denied,

(1995).

Appellant has not demonstrated that her guilty plea was

involuntary or that she entered her plea in reliance on promises

that were breached. See United States v. Borders,

(5th Cir. 1993) (“[W]hen a plea rests in any significant degree

on a promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must be

fulfilled.”) (quoting Santobello v. New York,

(1971)). During the plea colloquy, the district court advised

Payan-Paz of the applicable guideline range for her offense, and

2 she stated that she had spoken with her attorney and understood the

consequences of the plea agreement. In addition, we find no error

in the calculation of Payan-Paz’s sentence based on 18 1/4

kilograms. See United States v. Patten,

(5th Cir.

1994) (finding “no constitutional violation if the district court

includes the full quantity of drugs involved in the conspiracy and

not just the quantity of drugs in the count of conviction”), cert.

denied,

(1995).

In order to prevail on a claim for ineffective assistance of

counsel, Appellant must demonstrate that was deficient performance

by her attorney which prejudiced her defense. United States v.

Faubion,

(5th Cir. 1994). Because the contention

that the Government breached the plea agreement is without merit,

Appellant has failed to demonstrate prejudice in her counsel’s

failure to raise this issue during sentencing, and, therefore, we

find no ineffectiveness of counsel at sentencing. See Lowery v.

Estelle,

(5th Cir. 1983). Moreover, trial

counsel was not deficient in failing to urge Payan-Paz to proceed

to trial and raise a Fourth Amendment objection to the introduction

of the taped conversations. See United States v. Smith,

(5th Cir. 1992) (holding, under similar facts, that the

defendant did not satisfy his burden of showing that the

introduction of taped cordless telephone conversations, monitored

3 on a neighbor’s scanner, was a violation of the defendant’s Fourth

Amendment rights), cert. denied,

(1993).

In this regard, as the above issues are without merit,

Appellant has not shown that her appellate counsel’s performance

prejudiced her. See Williams v. Collins,

(5th

Cir.), cert. denied,

(1994). Finally, the claim of

ineffective assistance of counsel in post-conviction habeas

proceedings is also without merit because a convicted defendant has

no Sixth Amendment right to counsel in such proceedings. See

Irving v. Hargett,

(5th Cir. 1995) (“Because a

petitioner does not have a constitutional right to counsel in post-

conviction habeas proceedings, it follows that a petitioner cannot

claim ineffective assistance of counsel in such proceedings.”),

cert. denied, ___ U.S. ___,

(1996).

AFFIRMED

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