United States v. James Capaldi

68 F.3d 481, 1995 U.S. App. LEXIS 34516, 1995 WL 623421

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 1995
• Docket: 94-10201
• Status: Unpublished

Opinion

68 F.3d 481

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
James CAPALDI, Defendant-Appellant.

No. 94-10201.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 11, 1995.*
Decided Oct. 20, 1995.

Before: BEEZER, THOMPSON, and T.G. NELSON, Circuit Judges.

MEMORANDUM**

James Capaldi appeals his sentence imposed following entry of a guilty plea to bank robbery, in violation of 18 U.S.C. Sec. 2113(a). Capaldi contends the district court erred by imposing a two-level enhancement to his offense level under U.S.S.G. Sec. 2B3.1(b)(2)(F) for making an express threat of death during the robbery. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and affirm.

We deem Capaldi's argument regarding the enhancement for an "express threat of death" waived because he withdrew his objections to the presentence report at the sentencing hearing. See United States v. Manarite, 44 F.3d 1407, 1419 n.18 (9th Cir.) ("withdrawal of an objection is tantamount to a waiver of an issue on appeal"), cert. denied, 115 S. Ct. 2610 (1995).

Capaldi also contends that he received ineffective assistance of counsel due to counsel's withdrawal of Capaldi's objection to the presentence report.

In general, challenges to a conviction based upon ineffective assistance of counsel are made through collateral attack, which provides an opportunity for an "evidentiary inquiry beyond the official record." United States v. Carr, 18 F.3d 738, 741 (9th Cir.), cert. denied, 115 S. Ct. 82 (1994). We do not address such claims on direct appeal unless the record is sufficiently developed to allow resolution of the issue, or unless assistance is so obviously inadequate as to violate a defendant's right to counsel. United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992).

Here, the record is insufficient to allow us to adequately evaluate the effectiveness of Capaldi's counsel. See id.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3