United States v. Jones ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 29, 2008
No. 07-50950
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PATRICK JONES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-22-2
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Patrick Jones appeals the sentence imposed following his jury conviction
for possession with intent to distribute crack cocaine within 1,000 feet of a
protected location. He argues that the district court’s drug quantity calculation
was erroneously based on the unreliable trial testimony of Sharon Jones.
In the absence of rebuttal evidence from Jones, the district court correctly
relied on the presentence report in calculating drug quantity. See United States
*
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should not be published and is not precedent except under the limited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. 07-50950
v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993). Additionally, Sharon Jones’s
testimony supports the district court’s calculation; her testimony was not
ambiguous regarding the quantity of crack the Joneses sold versus the quantity
they consumed for personal use, it established that the Joneses were heavy users
of crack cocaine and used a significant portion of the profits from its sale to
purchase more drugs, and it did not support Jones’s allegation that Sharon
Jones suffered from a mental illness that affected the credibility of her
testimony. The district court’s drug quantity calculation therefore was not error,
plain or otherwise. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005).
Jones has moved pro se for “clarification” and appointment of new counsel,
raising ineffective assistance of counsel claims. Ineffective assistance of counsel
claims generally cannot be addressed on direct appeal unless they have been
presented to the district court. Massaro v. United States, 538 U.S. 500, 505
(2003); United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Jones’s
ineffective assistance claims are therefore best addressed on 28 U.S.C. § 2255review. Insofar as Jones requested the appointment of new appellate counsel,
he did so after counsel had filed a brief; therefore his request is untimely. Cf.
United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
AFFIRMED; MOTION FOR CLARIFICATION AND APPOINTMENT OF
NEW COUNSEL DENIED.
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