101 F. App'x 429

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward GILES, Defendant-Appellant.

No. 03-30427.

United States Court of Appeals, Fifth Circuit.

Decided June 15, 2004.

Josette Louise Cassiere, Assistant U.S. Attorney, U.S. Attorney’s Office, Shreveport, LA, for Plaintiff-Appellee.

Marcia Gail Shein, Law Office of Marcia Shein, Decatur, GA, for Defendant-Appellant.

Before SMITH, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Appellant Charles Edward Giles appeals his sentence enhanced by 21 U.S.C. *430§ 841(b)(1)(A).1 Appellant argues that his sentence should be reversed because the district court failed to comply with the colloquy requirement of 21 U.S.C. § 851(b). Because this argument is raised for the first time on appeal, we review for plain error. See United States v. Thomas, 348 F.3d 78, 86 (5th Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 1481, 158 L.Ed.2d 131 (2004).

Appellant concedes that the government filed an information alleging his prior convictions. The presentence investigation report (“PSR”) also listed Appellant’s prior convictions, yet Appellant failed to object to the PSR. Further, Appellant failed to challenge the convictions per § 851(c) and does not argue that he would or could have raised a proper challenge to his prior convictions had he received the district court’s warning under section 851(b). The district court’s failure to conduct the colloquy contemplated in 21 U.S.C. § 851(b) is, therefore, not reversible error. See Thomas, 348 F.3d at 86-88; United States v. Majors, 328 F.3d 791, 797 (5th Cir.2003).

Appellant also claims that his trial counsel’s performance at sentencing was constitutionally ineffective. This claim was not raised in the district court. The district court, therefore, did not fully develop a record on the issue. “In this Circuit the general rule is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal unless it has been first raised before the district court. This rule is not merely a procedural technicality. Unless the district court has developed a record on the defendant’s allegations, we cannot fairly evaluate the merits of the claim.” United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991) (internal citations omitted). Accordingly, we dismiss Appellant’s claim of ineffective assistance of counsel on direct appeal, without prejudice, however, to his right to raise the issue in habeas corpus proceedings. Id.

For the reasons expressed herein, we affirm Appellant’s conviction and sentence.

AFFIRMED.

United States v. Giles
101 F. App'x 429

Case Details

Name
United States v. Giles
Decision Date
Jun 15, 2004
Citations

101 F. App'x 429

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!