United States v. Hill , 139 F. App'x 622 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-50512
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HILL,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-18-ALL
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted David Hill on three counts of distributing of
crack cocaine and one count of distributing of crack cocaine within
1,000 feet of a school, in violation of 21 U.S.C. §§ U.S.C.
841(a)(1), (b)(1)(C) and 860. The district court sentenced Hill to
concurrent 48-month sentences and an aggregate eight-year term of
supervised release. Hill now appeals his conviction and his
sentence.
*
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this opinion should not be published and is not precedent except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. 04-50512
-2-
Hill argues that the district court erred when it denied his
motion for a mistrial, which was made after a law enforcement
office testified that Hill had stated he was a crack cocaine user.
Specifically, Hill argues that the district court failed to hold
any sort of hearing on his motion. The record belies Hill’s
argument. The district court conducted a bench conference on his
mistrial motion and stated reasons for its denial. Hill has not
shown an abuse of discretion by the district court. See United
States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995).
Hill argues that trial counsel rendered ineffective assistance
because he failed to: (1) inform Hill that the Government had made
a plea bargain offer prior to the commencement of the trial; (2)
assert the affirmative defense of entrapment and request a jury
instruction thereon; and (3) inform Hill that cooperation with the
Government was necessary to the success of a request for a downward
departure at sentencing. Because these claims of ineffective
assistance of counsel were not raised in the district court, the
record is insufficiently developed to consider the merits of the
claims on appeal. See United States v. Miller, 406 F.3d 323, 335-
36 (5th Cir. 2005).
Hill argues that there was sufficient evidence of entrapment
that the district court erred in denying his motions for acquittal
or, alternatively, that the Government failed to meet its burden of
showing that he was predisposed, able, and likely to commit the
instant offenses. The affirmative defense of entrapment was not
No. 04-50512
-3-
asserted by trial counsel either in his motion for acquittal at the
close of the Government’s case or in his motion for acquittal at
the close of all the evidence. Consequently, the district court
did not instruct the jury on entrapment, and the burden of proof
with respect to an entrapment claim never shifted to the
Government. See United States v. Thompson, 130 F.3d 676, 689 (5th
Cir. 1997).
Finally, Hill argues that his sentence is unconstitutional in
light of the Supreme Court’s recent decision in United States v.
Booker, 125 S. Ct. 738 (2005). Hill did not raise this argument in
the district court, and it is reviewed only for plain error.
United States v. Mares, 402 F.3d 511, 513, 520-22 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517). The
district court committed plain or obvious error when it engaged in
judicial factfinding that increased Hill’s sentence beyond that
authorized by the jury’s verdict. The district court also
committed plain or obvious error when it sentenced Hill under a
mandatory sentencing scheme. See United States v. Valenzuela-
Quevedo, ___ F.3d ___, No. 03-41754, 2005 WL 941353 at *4 (5th Cir.
Apr. 25, 2005). Such errors are not reversible, however, because
the district court did not give any clue that it would have imposed
a different sentence under an advisory sentencing scheme. See id.;
Mares, 402 F.3d at 520-22.
AFFIRMED.