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United States v. Kiep, 00-50290 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-50290 Visitors: 7
Filed: Sep. 11, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50290 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFRED JOHN KIEP, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. P-99-CR-154-1-F - - - - - - - - - - September 7, 2001 Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Alfred John Kiep appeals his conviction and sentence for possession of more than 100 ki
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-50290
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

ALFRED JOHN KIEP,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. P-99-CR-154-1-F
                        - - - - - - - - - -
                         September 7, 2001

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Alfred John Kiep appeals his conviction and sentence for

possession of more than 100 kilograms of marijuana with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1).

     Kiep contends that the evidence was insufficient to support

the knowledge element of his conviction, in that the marijuana

was concealed in a hidden compartment of the rented recreational

vehicle (“RV”) Kiep was driving.   The evidence was not

insufficient to support Kiep’s conviction.   See United States v.

El-Zoubi, 
993 F.2d 442
, 445 (5th Cir. 1993); United States v.


     *
        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that this opinion should not be published and is not precedent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. 00-50290
                                 -2-

Cano-Guel, 
167 F.3d 900
, 904 (5th Cir. 1999).   The jury was

authorized to find implausible Kiep’s story of how the marijuana

came to be found in the RV at a Border Patrol checkpoint in

Texas.   See United States v. Ramos-Garcia, 
184 F.3d 463
, 466 (5th

Cir. 1999); United States v. Jones, 
185 F.3d 459
, 464 (5th Cir.

1999) (constructive possession of drugs may be shown by control

of vehicle in which drugs are concealed), cert. denied, 121 S.

Ct. 125 (2000).

     For the first time on appeal, Kiep contends that the

prosecution made improper comments during its closing statement

when it stated that he had “duped” and “used” his wife with

respect to the proposed California trip.   The record suggests

that these comments were based on the evidence presented at trial

rather than that they were the prosecutor’s personal opinion of a

witness’s credibility.    See United States v. George, 
201 F.3d 370
, 373-74 (5th Cir.), cert. denied, 
529 U.S. 1136
(2000);

United States v. Casel, 
995 F.2d 1299
, 1309 (5th Cir. 1993),

judgment vacated as to codefendant on other grounds, 
510 U.S. 1188
(1994).   Kiep has not demonstrated plain error with respect

to this claim.    See United States v. Calverley, 
37 F.3d 160
, 162-

64 (5th Cir. 1994) (en banc).

     Also for the first time on appeal, Kiep maintains that his

trial attorney performed ineffectively by misinforming him about

the applicability of the “safety valve” provision, U.S.S.G.

§ 5C1.2.   Claims of ineffective assistance of counsel generally

may not be raised on direct appeal unless they were raised in

district court.    United States v. Rivas, 
157 F.3d 364
, 369 (5th
                           No. 00-50290
                                -3-

Cir. 1998).   When such a claim is raised for the first time on

direct appeal, this court will reach the merits of such claim

only “‘in rare cases where the record [allows the court] to

evaluate fairly the merits of the claim.’”     
Id. (quoting United
States v. Higdon, 
832 F.2d 312
, 314 (5th Cir. 1987)).    This is

not one of the “rare cases” in which the record permits this

court to address the merits of such a claim.

     Finally, Kiep argues that the district court erred in not

applying the “safety valve” guideline.    Aside from the fact that

Kiep never formally requested a “safety valve” departure in

district court, the record reflects that Kiep failed to sustain

his burden of “‘ensuring that he has provided all the information

and evidence regarding the offense to the Government.”    United

States v. Miller, 
179 F.3d 961
, 964 (5th Cir. 1999) (citation

omitted).

     AFFIRMED.

Source:  CourtListener

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