United States v. Smith , 200 F. App'x 328 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 15, 2006
Charles R. Fulbruge III
Clerk
No. 04-20251
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY LATROY SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-3715
USDC No. 4:01-CR-738-2
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Before HIGGINBOTHAM, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Latroy Smith seeks a certificate of appealability
(COA) to appeal the district court’s denial of his 28 U.S.C.
§ 2255 motion challenging his convictions for conspiracy to
commit bank fraud, bank fraud, money laundering, and possession
of counterfeit checks. See 28 U.S.C. § 2253(c)(1). Smith has
not shown that jurists of reason would debate the district
court’s denial of his claims that appellate counsel was
ineffective (1) for not advising him to appeal the district
*
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this opinion should not be published and is not precedent except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. 04-20251
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court’s assessment of a two-level increase pursuant to U.S.S.G.
§ 2S1.1(b)(2)(B) for direct money laundering and (2) for not
advising him to appeal the district court’s assessment of three
levels pursuant to § 3B1.1 for his aggravating role (manager) in
the offense. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Smith’s motion for COA is DENIED as to these claims.
Because Smith raised for the first time in his COA motion
his claim that his sentence is unconstitutional under Blakely v.
Washington, 542 U.S. 296 (2004), this court need not consider it.
See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
Smith has shown that jurists of reason would debate whether
the district erred in denying his claim that appellate counsel
was ineffective for advising him not to appeal the district
court’s denial of the third point for acceptance of
responsibility under § 3E1.1(b). See Slack, 529 U.S. at 484.
Smith’s motion for COA is GRANTED with regard to this claim.
However, Smith has not shown in either his COA motion or his
appeal brief that counsel was ineffective. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); United States v. Reinhart,
357 F.3d 521, 525 (5th Cir. 2004). At sentencing, the district
court overruled the Government’s objection to its refusal to
assess a two-level enhancement for obstruction of justice. There
was support in the record for the Government’s position, and the
Government specifically reserved its right to appeal on this
issue. Since an appeal by Smith on the § 3E1.1(b) claim might
No. 04-20251
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have provoked a cross-appeal by the Government on the
obstruction-of-justice issue, defense counsel’s advice to Smith
not to appeal the denial of the third point under § 3E1.1(b) was
within the wide range of reasonable professional conduct. See
Strickland, 466 U.S. at 689. Smith is not entitled to § 2255
relief on this claim. See id.
COA DENIED IN PART; COA GRANTED IN PART; JUDGMENT AFFIRMED.