United States v. Rivera

239 F. App'x 348

Opinions

MEMORANDUM

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Appellant Tony Rivera (“Rivera”) appeals his conviction and sentence in the United States District Court for the Central District of California. On August 29, 2005, a jury found Rivera guilty of Count II of a two-count indictment, charging him with knowingly and intentionally possessing with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841.

1. Rivera argues that the district court erred in finding the government established beyond a reasonable doubt that he had three qualifying prior felony drug offense convictions as alleged in the information filed pursuant to 21 U.S.C. § 851. Although Rivera argued § 851 violated due process and the Sixth Amendment, he did not challenge the underlying convictions themselves in the district court, nor did he object to the government’s exhibits offered to prove the three convictions. We hold that Rivera has waived the right to appeal the sufficiency of the government’s evidence because he failed to raise this challenge in the district court and has not shown good cause for his failure. See 21 U.S.C. § 851(c).

2. Rivera next challenges the sufficiency of the information filed pursuant to § 851. We review de novo the sufficiency of an information for purposes of § 851. United States v. Hamilton, 208 F.8d 1165, 1168 (9th Cir.2000). Rivera contends the information was insufficient because it did not provide him proper notice that he faced enhanced penalties if convicted. This argument is without merit. The information was filed before the trial, provided the dates, case numbers and charges associated with Rivera’s prior convictions, and cited 21 U.S.C. §§ 841 and 851. We hold that the information filed by the government provided sufficient notice to Rivera of the potential sentencing enhancement he faced if convicted of one or both of the counts charged in the indictment. See id. at 1169 (stating “[a]s long as the information provides clear notice to a defendant of the prior convictions ..., then [21 U.S.C. § 851] has been satisfied.”).

3. Rivera also raises two claims of ineffective assistance of counsel on this direct appeal. “Claims of ineffective assistance of counsel are generally inappropriate on direct appeal.” United States v. McKenna, 327 F.3d 830, 845 (9th Cir.2003) (citing United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000)). Ineffective assistance claims should ordinarily be raised on collateral attack, so that the record may be developed sufficiently to allow the court to determine whether counsel’s performance was deficient, and if so, whether the deficient performance prejudiced the defendant. McKenna, 327 F.3d at 845. Ineffective assistance claims may be “reviewed on direct appeal in two circumstances: ‘1) when the record on appeal is sufficiently developed to permit review and determination of the issue, or 2) when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.’” United States v. Lillard, 354 F.3d 850, 856 (9th Cir.2003) (quoting United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992)). Based on the record before us, we cannot say that counsel’s performance was so deficient as to deny Rivera his Sixth Amendment right to counsel, nor is the record sufficiently developed such that we can evaluate counsel’s performance and what, if any, prejudice resulted from any deficiencies in the performance. Therefore, we decline to consider Rivera’s two claims of ineffective assistance of counsel on direct appeal.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.