IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20305 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL OYOQUE-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-639 -------------------- February 11, 2002 Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Court-appointed counsel for Saul Oyoque-Gonzalez, has

requested leave to withdraw as counsel and has filed a brief as

required by Anders v. California,

(1967). Oyoque-

Gonzalez filed a response advancing three issues, and a request

to proceed pro se on appeal. First, he argues that the district

court erred in treating his deferred adjudication as a felony

conviction. This court rejected such an argument in Valdez v.

Valdez,

(5th Cir. 1998). Second, he maintains

his counsel was ineffective for failing to raise an 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20305 -2-

Apprendi v. New Jersey,

(2000), argument.

Generally, this court declines to review ineffective assistance

of counsel claims on direct appeal unless they are sufficiently

alleged in the record below. United States v. Gibson,

(5th Cir. 1995). In Gonzalez’s case, no claims of

ineffective assistance exist in the record. In any event, this

argument fails, because the district court sentenced Gonzalez

well within the guideline range. Finally, Gonzalez relies on

United States v. Rodriguez-Montelongo,

(5th

Cir. 2001), decided after his trial, for the proposition that he

should be allowed to argue for downward departure on the basis of

cultural assimilation. Because he raised this issue for the

first time on appeal, we review this argument under a plain error

standard. United States v. Rios-Quinteros,

(5th Cir. 2000)(reviewing for plain error even though case on

which defendant relies was decided after trial). Our independent

review of his letter-response and the PSR fail to demonstrate

facts to overcome the plain error standard.

A review of the guilty plea and sentencing discloses no

nonfrivolous issue. Accordingly, counsel’s motion for leave to

withdraw is GRANTED, counsel is excused from further

responsibilities, and the appeal is DISMISSED. Gonzalez’s motion

to proceed pro se on appeal is DENIED. See United States v.

Wagner,

(5th Cir. 1998).