                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1210
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *    Appeal from the United States
                                       *    District Court for the Northern
      v.                               *    District of Iowa.
                                       *
Charles Swarzentruber,                 *   [UNPUBLISHED]
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 15, 2004
                                Filed: November 18, 2004
                                 ___________

Before MURPHY, HANSEN and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

      Charles Swarzentruber was convicted by a jury of multiple drug and firearm
offenses and sentenced to 188 months imprisonment. He seeks a new trial,
contending that the district court1 should have sua sponte ordered a competency
hearing after he tested positive for methamphetamine during trial and that his
attorney's failure to request such a hearing denied him effective assistance. We
affirm.


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       Swarzentruber was indicted on three counts of distributing methamphetamine,
two counts of possessing the drug with an intent to distribute, and one count of
possessing a firearm while unlawfully using drugs. On the first day of trial, two
witnesses testified they had obtained methamphetamine from Swarzentruber the prior
week, and one said he had used the drug with Swarzentruber during the past year.
Because one of the conditions of Swarzentruber's pretrial release was not to use
illegal substances, he was given a drug test which returned positive for
methamphetamine. After the district court observed that Swarzentruber exhibited no
outward signs of impairment and confirmed that he was able to communicate
effectively with his lawyer, the trial proceeded.

       Swarzentruber argues that due process requires a hearing whenever sufficient
doubt is raised about a defendant's competency at trial, Griffin v. Lockhart, 935 F.2d
926, 929 (8th Cir. 1991), and that the district court erred by not holding such a
hearing. The factors to be considered in deciding whether a hearing is necessary
include evidence of irrational behavior, the defendant's demeanor at trial, and any
prior medical opinions concerning the defendant's competency. Id. at 930. None of
these factors raised doubt as to Swarzentruber's competency at the time of trial, for
the record reveals no irrational behavior and the court made findings to the contrary.
The use of drugs "does not per se render a defendant incompetent to stand trial."
Lewis v. United States, 542 F.2d 50, 51 (8th Cir. 1976), cert. denied, 429 U.S. 837
(1976). Swarzentruber has not shown that the court erred by not holding a
competency hearing or that his due process rights were violated.

       Swarzentruber also argues that his trial counsel's failure to request a
competency hearing denied him effective assistance. This claim is premature on
direct appeal. See United States v. Jackson, 41 F.3d 1231, 1234 (8th Cir. 1994).

      The judgment of the district court is affirmed.

                       ______________________________


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