United States v. Lamon Donnell , 557 F. App'x 335 ( 2014 )

Case: 13-40495 Document: 00512544745 Page: 1 Date Filed: 02/26/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40495 February 26, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LAMON SANDEL DONNELL,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-65-6
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Lamon Sandel Donnell pleaded guilty to violating 21 U.S.C. § 846 when
he conspired to possess with the intent to distribute 3, 4-
Methylenedioxymethamphetamine (ecstasy) in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced him to 240 months in prison.
The Government has moved for summary affirmance or, alternatively, a
motion for an extension of time to file an appellate brief. Because summary
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40495
affirmance is not appropriate in this case, the Government’s motion is
DENIED. See United States v. Holy Land Found. for Relief and Dev., 445 F.3d
771, 781 (5th Cir. 2006). However, because Donnell is not entitled to relief, as
discussed below, we DISPENSE with further briefing.
In his first assignment of error, Donnell argues that the district court
was without subject matter jurisdiction, which is a question of law that we
review de novo. See In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th
Cir. 1997). The language in the superseding indictment returned against
Donnell tracked the language in § 846 and § 841(a)(1) by stating that Donnell
and his codefendants violated § 846 when they knowingly and intentionally
conspired to possess with the intent to distribute ecstasy in violation of
§ 841(a)(1). Accordingly, the indictment was sufficient to confer subject matter
jurisdiction on the district court. See United States v. Jackson, 313 F.3d 231,
233 (5th Cir. 2002).
Donnell next argues that the district court was without personal
jurisdiction over him, which is also a question of law that we review de novo.
Quick Tech., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343 (5th Cir. 2002). Donnell’s
personal appearance before the district court during his initial appearance
secured the district court’s personal jurisdiction over him. See United States
v. Vicars, 467 F.2d 455, 456 (5th Cir. 1972); United States ex rel. Voigt v.
Toombs, 67 F.2d 744 (5th Cir. 1933).
In his third assignment of error, Donnell argues that the Assistant
United States Attorney assigned to his case did not have the authority to
prosecute him. The United States Attorney shall “prosecute . . . all offenses
against the United States” within his district. 28 U.S.C. § 547(1). Assistant
United States Attorneys are appointed by the Attorney General to aid the
United States Attorney in carrying out his duties. 28 U.S.C. § 542. Donnell
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No. 13-40495
does not argue that the Assistant United States Attorney assigned to his case
was not appointed by the United States Attorney or not admitted to practice
in the Eastern District of Texas. His claim is therefore unavailing.
Finally, Donnell argues that his attorney performed ineffectively by
inducing him to plead guilty through fraud, deceit, and collusion. The record
is insufficiently developed to allow consideration at this time of Donnell’s
ineffective assistance claims; such claims generally “cannot be resolved on
direct appeal when [they have] not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted).
AFFIRMED.
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