United States v. Sublet , 211 F. App'x 301 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-20912
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD SUBLET,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-284
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Donald Sublet appeals his guilty plea conviction and
sentence for possession with intent to distribute less than 50
kilograms of marijuana in violation of 18 U.S.C. §§ 841(a)(1),
(b)(1)(D), and for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), as well as his
bench-trial conviction and sentence for possession of firearms in
furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). Sublet claims that the district court committed
plain error by failing, sua sponte, to suppress evidence
*
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this opinion should not be published and is not precedent except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. 05-20912
-2-
discovered during a search of his apartment that was allegedly
conducted in violation of the Fourth Amendment’s knock-and-
announce rule. See 18 U.S.C. § 3109; Hudson v. Michigan, 126
S. Ct. 2159 (2006) (discussing the knock-and-announce
requirement).
With respect to his guilty-plea convictions, Sublet has
waived all non-jurisdictional defects in the proceedings before
the district court by entering a valid, unconditional guilty
plea. United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999).
That waiver includes the right to appeal any Fourth Amendment
claims. United States v. Diaz, 733 F.2d 371, 376 n.2 (5th Cir.
1984). With respect to his bench-trial conviction, Sublet filed
two motions to suppress in the district court, but neither motion
raised any claim regarding the officers’ failure to comply with
the knock-and-announce procedure. See R. 2, 72-80; 184-92.
Therefore, review is for plain error. See United States v.
De Jesus-Batres, 410 F.3d 154, 158 (5th Cir. 2005), cert. denied
126 U.S. 1022 (2006). Sublet has not shown that the officers
violated the knock-and-announce rule or that the district court’s
failure to suppress the evidence obtained from the subsequent
search sua sponte constituted clear or obvious error. See United
States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003);
Gracia-Cantu, 302 F.3d at 310.
Sublet also claims that his attorney rendered ineffective
assistance in failing to seek suppression of the evidence
No. 05-20912
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pursuant to the knock-and-announce rule. Generally, this court
declines to review claims of ineffective assistance of counsel on
direct appeal. United States v. Miller, 406 F.3d 323, 335-36
(5th Cir.), cert. denied, 126 S. Ct. 207 (2005); see also United
States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). The Supreme
Court has emphasized that a 28 U.S.C. § 2255 motion is the
preferred method for raising a claim of ineffective assistance of
counsel. See Massaro v. United States, 538 U.S. 500, 503-04
(2003). Accordingly, this court has “undertaken to resolve
claims of inadequate representation on direct appeal only in rare
cases where the record allowed [the court] to evaluate fairly the
merits of the claim.” United States v. Higdon, 832 F.2d 312, 314
(5th Cir. 1987). Sublet’s is not one of those rare cases.
AFFIRMED.