IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50368 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOLORES ANN FLORES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of USDC No. EP-98-CR-1011-ALL-DB --------------------

November 17, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Flores argues on direct appeal that her trial attorney

provided ineffective-assistance-of-counsel because he failed to

file motions to suppress which argued that: 1) customs agents

lacked reasonable suspicion to justify a “second avenue”

inspection; and 2) use of military personnel and a military

canine at the border check point violated the Posse Comitatus

Act,

. Although not framed as an issue on

appeal, Flores also asks this court to review the alleged

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50368 -2-

violation of the Posse Comitatus Act for plain error.

A claim of ineffective assistance is generally not

reviewable on direct appeal unless the district court has already

addressed the contention. United States v. Gibson,

(5th Cir. 1995). If the claim is raised for the first time

on appeal, this court will reach the merits of the claim only in

rare cases where the record allows the court to evaluate fairly

the merits of the claim. United States v. Higdon,

(5th Cir. 1987). Because Flores’ claims are based upon a

failure to file motions to suppress where no record has been

developed below, her case is not one of those rare exceptions.

See United States v. Maria-Martinez,

(5th Cir.

1998). Any ineffective-assistance claim she may wish to bring

may be brought in a

motion.

In a two-sentence argument, Flores asks this court to review

the alleged violation of the Posse Comitatus Act for plain error.

Even if Flores had properly framed and argued this issue, it

would not prevail. The facts of this case present no basis to

warrant the creation or application of an exclusionary rule in

the context of plain error review. See United States v. Hartley,

(5th Cir. 1986).

Because Flores’ arguments are not cognizable and without

merit, we hereby dismiss her appeal as frivolous. 5TH CIR. R.

42.2.

APPEAL DISMISSED.