United States v. Laird ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50086
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY DALTON LAIRD,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
( W-95-CR-39-1) )
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December 4, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
On this direct appeal, Bobby Dalton Laird presents five issues
in challenging his conviction and sentence for conspiracy to
possess methamphetamine with intent to distribute, in violation of
21 U.S.C. §§ 841 (a)(1) and 846. First, Laird contends that the
district court abused its discretion in admitting evidence that
Laird had been observed carrying a firearm during the course of the
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
conspiracy. Because this evidence was highly probative of his
criminal intent to participate in the conspiracy, the district
court did not abuse its discretion. United States v. Martinez, 808
F.2d 1050, 1056-57 (5th Cir.), cert. denied, 481 U.S. 1032 (1987).
Laird asserts next that the district court abused its
discretion by into evidence 55.10 grams of methamphetamine (Gov.
exs. 34 and 35) because the Government allegedly failed to link the
evidence to him. No authority need be cited for the rule that, no
objection having been made at trial, we review only for plain
error. The Government introduced evidence that the methamphetamine
was seized from the residence of a coconspirator, David Clendenen.
Clendenen testified that he had received the methamphetamine from
Laird two days before the former’s residence was searched.
Needless to say, there was no plain error.
Laird maintains that the district court clearly erred in
increasing his offense level under Guidelines §2D1.1, pursuant to
finding that Laird had been observed carrying a firearm during the
course of the conspiracy. This finding was based on evidence that
Laird was observed by a coconspirator carrying a firearm, and a
statement in the Presentence Report, given to the probation officer
by another coconspirator, that Laird was observed carrying a
firearm on at least six occasions. The court did not clearly err.
Laird contends also that the district court clearly erred in
calculating his sentence based on the above referenced
methamphetamine. As discussed, the Government presented evidence
directly linking Laird to the methamphetamine. Therefore, the
court did not clearly err.
Finally, Laird claims that his trial counsel was ineffective
in failing to object to the trial court’s assumption that his case
involved D-methamphetamine, instead of L-methamphetamine. This
claim cannot be resolved on direct appeal because it was not raised
in the district court and no opportunity existed to develop the
record on its merits. E.g., United States v. Higdon, 832 F.2d 312,
313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075 (1988). Of
course, this claim may be raised in a 28 U.S.C. § 2255 proceeding.
AFFIRMED