IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-20921

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

RAFAEL DOMINGUEZ, JR., Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (H-98-CR-126-2)

September 26, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Rafael Dominguez, Jr., appeals his conviction by guilty plea

for conspiracy to possess with intent to distribute a controlled

substance. He argues that the government failed to establish the

factual basis for his plea and that he received ineffective

assistance of counsel. After reviewing the briefs and the record,

we find no grounds for reversal.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Dominguez pleaded guilty to violating

and

846. He argues that since the government conceded that he did not

know that there was cocaine included in the shipment of marijuana

he made, there is no factual basis for his guilty plea to the

charge that he conspired to possess with intent to distribute both

marijuana and cocaine. Section 841, which defines the offense

underlying the conspiracy, requires only knowing possession with

intent to distribute a controlled substance. Dominguez’s knowledge

that the shipment contained marijuana provided a factual basis for

his guilty plea. Whether or not he was aware of the cocaine in the

shipment does not bear on his guilt under Sections 841 and 846; the

references to cocaine in Section 841 appear only in its sentencing

provisions.

This court generally declines to review claims of ineffective

assistance of counsel on direct appeal. United States v. Gibson,

(5th Cir. 1995). We have “undertaken to resolve

claims of inadequate representation on direct appeal only in rare

cases where the record allowed us to evaluate fairly the merits of

the claim.” United States v. Higdon,

(5th Cir.

1987). This is not such a case.

For these reasons, Dominguez’s conviction and sentence are

AFFFIRMED.

2