     Case: 08-30212     Document: 00511005573          Page: 1    Date Filed: 01/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 15, 2010
                                     No. 08-30212
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRYANT JACOBS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:06-CR-171-1


Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Bryant Jacobs appeals his conviction for being a felon in possession of a
firearm and his resulting sentence to, inter alia, 120 months’ imprisonment.
        Jacobs contends the district court improperly advised him that he had no
standing to file a motion to suppress evidence. He maintains: at a pretrial
conference, the district court agreed with Jacobs’ counsel’s assessment that a
suppression motion was not viable because Jacobs lacked standing to challenge
the disputed evidence. The record reflects, however, that the district court never

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30212

ruled on the validity of a motion to suppress because no such motion was ever
filed. Instead, the court merely explained to Jacobs the legal concept of standing
and clarified for him the reasons his counsel decided not to file such a motion.
Moreover, to the extent that Jacobs seeks to have our court decide whether the
disputed evidence should be suppressed, he has waived his right to raise that
issue here. See United States v. Pope, 467 F.3d 912, 918 (5th Cir. 2006) (noting
that a defendant who fails to make a timely suppression motion cannot raise
that claim for the first time on appeal).
      Jacobs also asserts his trial counsel was ineffective because he did not file
a motion to suppress. The record, however, is not sufficiently developed to
permit direct review of Jacobs’ ineffective-assistance-of-counsel claim.        See
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Therefore, we
decline to consider this claim, without prejudice to Jacobs’ right to raise it in a
28 U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S. 500, 502–07
(2003) (noting that habeas proceedings are the preferred method for raising an
ineffective-assistance-of-counsel claim).
      Finally, for the first time on appeal, Jacobs contends the district court
erroneously   relied    upon   the   presentence   investigation   report’s   (PSR)
characterization of his prior state-court convictions, for illegal use of weapons
and possession with intent to distribute marijuana, to increase his sentence by
10 offense levels under Guideline § 2K2.1 (increasing base offense level where
defendant has “at least two felony convictions of either a crime of violence or a
controlled substance offense”). As Jacobs concedes, review of this issue is only
for plain error.
      Reversible plain error exists where a clear or obvious error affects the
defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Even then, we have discretion whether to
correct such an error and generally will do so only if it seriously affects the

                                         2
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                                No. 08-30212

fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d
at 332.
      The district court was not permitted to rely on the PSR’s characterization
of Jacobs’ past offenses for sentence-enhancement purposes. See United States
v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Jacobs has failed, however,
to demonstrate that any such error affected his substantial rights. See United
States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (holding substantial
rights are not affected where appellant fails to establish that the application of
the enhancement was ultimately wrong).
      AFFIRMED.




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