                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1251
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Tracy A. Cook,                         *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 20, 2003

                                 Filed: January 30, 2004
                                  ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       Tracy Cook (Cook) was charged with and convicted of two counts of
possession with intent to distribute cocaine base and one count of conspiracy to
possess with intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1), (b)(1), 846
(2000). The district court1 sentenced Cook to 360 months imprisonment on the first
two counts, to run concurrently with a life sentence on the conspiracy count. Cook
raises numerous issues on appeal. We affirm.

      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
I.    BACKGROUND
      On June 1, 2001, Omaha police officers were conducting surveillance on a
wanted man. During the surveillance, the officers saw the wanted man and two other
men enter a car and drive away. Cook was later identified as the driver. The police
followed in their car. When Cook observed the police following him, he led them on
a high-speed chase. The chase concluded when Cook stopped his car and ran,
eventually entering a house occupied by a woman and her seven children. These
people were strangers to Cook and were frightened by the intrusion. A police officer
apprehended Cook at gun point when Cook walked out of a bathroom in the home.
The police later found a bag containing 9.3 grams of crack cocaine in the bathroom.
Before the police said where the bag was found or described its contents, Cook
excitedly said, “You can’t charge me with that, you found that in the bathroom and
I was arrested in the living room.”

      Based on Cook’s June 1, 2001 conduct, the government later charged Cook
with possession with intent to distribute cocaine base, and issued an arrest warrant for
him. On September 6, 2001, the police arrested Cook, strip searched him, and
discovered a bag containing 4.2 grams of crack cocaine. The government thereafter
charged Cook with (1) possession with intent to distribute cocaine base on June 1,
2001, (2) possession with intent to distribute cocaine base on September 6, 2001, and
(3) conspiracy to distribute and possession with intent to distribute 50 grams or more
of cocaine base from on or about January 1, 2000, through September 6, 2001.

      Nearly seven weeks before trial, the government filed an Information to
Establish Prior Convictions. At trial, Cook testified about his several prior felony
convictions. Also during Cook’s trial, the government introduced the testimony of
Patrick Watson (Watson), Gregory Figures (Figures), Jimmy Swain (Swain), and
William Hawkins (Hawkins). These four witnesses testified they saw Cook with
crack cocaine on numerous occasions, bought crack cocaine from Cook, sold crack
cocaine to Cook, and bought and sold crack cocaine with Cook. Cook’s counsel tried

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to paint the adverse witnesses as untrustworthy felons seeking leniency for testifying
against Cook. The jury found Cook guilty on all counts.

       At Cook’s sentencing hearing, the district court held Cook responsible for 694
grams of crack cocaine. Finding Cook’s actions on June 1, 2001 endangered people,
the district court applied a two-level obstruction of justice enhancement. The district
court also found Cook had two prior felony drug convictions. Based on its findings,
the district court sentenced Cook to 360 months imprisonment on the first two counts,
to run concurrently with a life sentence on the conspiracy count.

       On appeal, Cook’s counsel argues (1) the district court improperly enhanced
Cook’s sentence based on two prior felony drug convictions, (2) the district court
improperly applied an obstruction of justice enhancement, and (3) Cook’s conviction
was not supported by sufficient evidence. By way of a pro se supplemental brief,
Cook also alleges (1) he was denied a competency hearing, (2) he was not properly
notified of the government’s intent to use prior convictions to enhance his sentence,
(3) he was denied a fair trial when the government introduced five prior convictions,
(4) he was denied the effective assistance of counsel, and (5) sufficient evidence did
not support his conspiracy conviction.

II.    DISCUSSION
       A.    Prior Convictions
       Cook contends the district court improperly enhanced Cook’s sentence based
on two prior felony drug convictions. We review de novo the district court’s use of
two of Cook’s prior convictions for enhancement purposes. United States v.
Stallings, 301 F.3d 919, 920 (8th Cir. 2002). Although Cook argues in his pro se
supplemental brief he was not notified of the government’s intent to use two of his
prior convictions to enhance his sentence, his counsel correctly acknowledges the
government gave proper notice before trial when it filed an Information to Establish



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Prior Convictions under 21 U.S.C. § 851(a)(1) (authorizing increased punishment for
prior convictions if notice provided before trial). Thus, Cook received proper notice.

      Cook also contends his sentence cannot be enhanced, because he was convicted
and sentenced on the same day for both prior felony convictions. During trial and at
sentencing, Cook admitted he was convicted of two separate drug offenses on
October 10, 1997. Specifically, Cook was convicted of an April 9, 1997 possession
of cocaine offense, and an October 7, 1997 possession of cocaine offense. It does not
matter that Cook was convicted and sentenced on the same day. What matters is he
was convicted of two separate criminal episodes. See United States v. Gray, 152 F.3d
816, 821-22 (8th Cir. 1998) (holding a sentence enhancement for two prior
convictions must be based on separate criminal episodes). Thus, we hold the district
court properly used the two prior convictions for possessing cocaine to enhance
Cook’s sentence. See 21 U.S.C. § 841(b)(1)(A) (mandating life imprisonment for a
person convicted of two prior felony drug convictions).

       B.    Sentence Enhancement
       Cook maintains the district court’s decision to enhance Cook’s sentence for
obstructing justice (i.e., reckless endangerment during flight) was clearly erroneous,
as it was based on unreliable evidence. We review the factual findings underlying a
sentence enhancement for clear error. United States v. Tirado, 313 F.3d 437, 440 (8th
Cir. 2002).

       The Sentencing Guidelines provide a two-level enhancement “[i]f the
defendant recklessly created a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law enforcement officer.” U.S.S.G.
§ 3C1.2 (2001). Reckless means “a situation in which the defendant was aware of the
risk created by his conduct and the risk was of such a nature and degree that to
disregard that risk constituted a gross deviation from the standard of care that a
reasonable person would exercise in such a situation.” Id. § 2A1.4, cmt. n.1; § 3C1.2,

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cmt. n.2. The district court found Cook’s June 1, 2001 conduct endangered people
through his evasive, high speed driving and his rushing into a stranger’s home to hide
and to conceal crack cocaine.

      Cook was driving a vehicle while intoxicated when he chose to flee the police,
who pursued with police cars and a surveillance helicopter. Cook drove at high
speeds in a residential area. Cook admittedly crossed an intersection through
oncoming cross-traffic. After abandoning his car, Cook charged into a stranger’s
home, requiring a police officer to enter the house at gunpoint to arrest Cook. The
residents of the house included a mother and her seven children. The mother testified
she was frightened, and an officer testified the residents seemed “very upset and
almost in a state of shock.” The officer, at gun point, ordered Cook onto the floor.
These events–caused by Cook–created a substantial risk of serious bodily injury to
others. The district court’s findings are clearly not erroneous.

       C.    Sufficiency of the Evidence
       Cook argues there was insufficient evidence to support the guilty verdict on the
conspiracy count. Cook confronts a high hurdle with this argument, as we must
employ a very strict standard of review on this issue. United States v. Sanders, 341
F.3d 809, 815 (8th Cir. 2003). We must view “the evidence in the light most
favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (citation omitted). We may reverse only if no
reasonable jury could have found Cook guilty. Id. The government had to prove
there was an agreement to distribute cocaine base, which Cook knew and
intentionally joined. Id. The government could prove the existence of a conspiracy
with direct or circumstantial evidence. Id.

      Cook’s argument on appeal sounds more like a summation to a jury. Cook
repeatedly attacks the veracity and credibility of adverse witnesses. These arguments

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did not persuade the jury, and are similarly unconvincing on appeal. See United
States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003) (stating the jury “is always the
ultimate arbiter of a witness’s credibility, and this Court will not disturb the jury’s
findings in this regard”). The jury concluded the government met its burden to prove
the conspiracy count beyond a reasonable doubt. Because the record supports this
conclusion, we will not overturn the jury’s verdict.

       Although the record contains substantial evidence of Cook’s involvement in
a conspiracy to distribute cocaine base, we focus only on the testimony of Hawkins
and Watson. Hawkins testified to the following: (1) he dealt drugs with Cook in
1996 and 1997, as well as from 2000 to August 2001; (2) he sold Cook 1/4 to 1 ounce
of crack cocaine each time for Cook to distribute; (3) he sold Cook an ounce (i.e., 28
grams) of crack cocaine about three times in 2000 and 2001, and 1/4 to 1/2 ounce
more than five times; (4) he never saw Cook use the crack cocaine; (5) he and Cook
had an arrangement to constantly have drugs to sell; (6) under their arrangement,
Hawkins would get drugs from Cook when Hawkins was unable to get drugs, and
Cook would get drugs from Hawkins when Cook was unable to get drugs; (7) when
he did not have enough money to purchase drugs to sell, he would get money from
Cook to buy drugs; (8) he and Cook both owned scales to weigh their drugs; (9) he
and Cook sold crack cocaine in each other’s presence, and they took turns selling
crack cocaine to their customers; and (10) he and Cook once agreed to split the cost
of buying three ounces of crack cocaine from a supplier, Figures.

       In addition to hearing Hawkins’s testimony, the jury also heard from Watson.
Watson testified as follows: (1) he bought 1/4 ounce of crack cocaine from Cook
three or four times; (2) he sold an ounce of crack cocaine to Cook four to seven times;
(3) he saw Cook with electronic and digital scales; (4) the amounts he sold to Cook
were too large for Cook to smoke, intimating Cook would then distribute the crack
cocaine; (5) he never observed Cook use crack cocaine; and (6) he and Cook had a
business relationship to purchase drugs from each other whenever one of their

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suppliers did not have drugs available. We conclude the evidence supports the jury’s
conviction on the conspiracy count.2

       D.     Competency to Stand Trial
       Cook argues in his pro se supplemental brief he was denied due process by the
district court’s refusal to grant his request for a competency hearing and a mental
evaluation. Congress designated the district court as the gatekeeper on competency
issues. See 18 U.S.C. § 4241(a). Congress authorizes a competency hearing when
“there is reasonable cause to believe that the defendant may presently be suffering
from a mental disease or defect rendering him mentally incompetent to the extent that
he is unable to understand the nature and consequences of the proceedings against
him or to assist properly in his defense.” Id. After hearing testimony from Cook and
his grandmother regarding Cook’s competency and mental condition, the district
court found Cook mentally competent to stand trial. This competency determination
is a factual finding we affirm “unless clearly arbitrary or unwarranted, or clearly
erroneous.” United States v. Voice, 627 F.2d 138, 141 (8th Cir. 1980) (citations
omitted). We note the “[p]resence of a mental illness does not equate with
incompetency to stand trial.” Feguer v. United States, 302 F.2d 214, 236 (8th Cir.
1962) (Blackmun, J.).

      In his testimony, Cook demonstrated an understanding of the charges against
him, his rights, and how the criminal justice system operates. Cook focused his
competency testimony on the fact he did not want to go to jail for a long time, and


      2
        The brief submitted by Cook’s counsel and Cook’s pro se supplemental brief
seem to attack only the conspiracy conviction. To the extent Cook also attacks the
jury’s guilty verdict on the two counts of possession with intent to distribute cocaine
base, we readily reject this argument. On two occasions, the police arrested Cook
with 9.3 grams and 4.2 grams, respectively, of crack cocaine in his possession.
Combined with the evidence supporting the conspiracy conviction, the jury quite
reasonably concluded Cook possessed with intent to distribute cocaine base.

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that he wanted this case to be over. As most criminal defendants have similar wishes,
we cannot find any facts that would assist Cook with his competency plea. Cook’s
trial counsel told the district court Cook vacillated on how he wanted his counsel to
represent him, suggesting an updated psychiatric evaluation was necessary. Such
vacillation did not demonstrate an incompetency to stand trial or need for a
psychiatric evaluation. Reviewing the record, we conclude the district court’s
competency determination was not clearly arbitrary or unwarranted, or clearly
erroneous.3

       Finally, Cook argues his previous felony drug convictions used to enhance his
sentence in this case also violated his rights because he now challenges his
competency in those cases. Because Cook’s argument is directed at the wrong court
at the wrong time, we refuse to confront this belated assertion of incompetency.

       E.    Impeachment Evidence
       Cook complains in his pro se brief that the district court erroneously admitted
evidence of five of Cook’s prior convictions. Cook acknowledges no objections to
this evidence were made at trial. Thus, we employ a plain error standard of review,
under which Cook must show a plain error that affects his substantial rights. United
States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003). If Cook can make such a
showing, we have “discretion to correct a forfeited error if ‘the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). Given the amount of evidence
against Cook in this case, including the 13.5 ounces of crack cocaine found on his
person, we cannot conclude under a plain error standard that the evidence of Cook’s




      3
        We note Cook, on appeal, submitted a pro se supplemental brief exceeding
twenty pages and raising numerous complex legal issues. In reading Cook’s appellate
brief, we see no signs of incompetency.

                                          -8-
prior convictions affected his substantial rights or called into question the fairness,
integrity or public reputation of the judicial proceedings against him.

       F.      Ineffective Assistance of Counsel
       Cook finally raises claims of ineffective assistance of counsel, arguing in his
pro se brief his “counsel deliberately sabotaged” his defense. Specifically, Cook
faults his trial counsel for attacking the credibility of adverse witnesses by bringing
up gang membership, opening the door for evidence about Cook’s gang membership.
Cook faults his trial counsel for bringing up the time Cook spent in prison, and for
failing to exclude evidence of prior convictions. Cook also argues his trial and
appellate counsel were ineffective on the competency issue. Cook argues his trial
counsel failed to obtain all of Cook’s medical records for the district court’s
consideration, and his appellate counsel failed to obtain those records and submit the
records to our court for review.

        To prove ineffective assistance of counsel, Cook must show his counsel’s
deficient performance fell below an objective standard of reasonableness, and the
deficient performance prejudiced Cook’s defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Generally, ineffective assistance of counsel claims are better
left for post-conviction proceedings. United States v. Soriano-Hernandez, 310 F.3d
1099, 1105 n.9 (8th Cir. 2002). However, these claims are proper on direct appeal
in exceptional cases where the record has been fully developed or to avoid a plain
miscarriage of justice. Id. Ineffective assistance claims may also be appropriate on
direct appeal when trial counsel’s ineffectiveness is readily apparent or obviously
deficient. See Massaro v. United States, 123 S. Ct. 1690, 1696 (2003).

      Based on the undeveloped record before us, we cannot properly analyze Cook’s
pro se allegations of ineffective assistance of counsel. First, Cook’s counsel
apparently sought to impeach one adverse witness by revealing that witness’s gang
membership, and sought to impeach another adverse witness by asserting an

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impossibility defense, i.e., the adverse witness lied because Cook was in prison at the
time the witness said Cook was conspiring to sell drugs. Second, to avoid the
obvious result which flows from the district court’s competency determination, Cook
now focuses his allegations on undiscovered medical records. Nothing before us
indicates the failure of Cook’s counsel to obtain Cook’s medical records would have
altered the outcome of the trial or the district court’s competency decision. Because
we have only a pro se brief and an undeveloped factual record on the ineffective
assistance of counsel claims, we refuse to address Cook’s claims now, as his claims
are better left to a proceeding under 28 U.S.C. § 2255. See United States v. Logan,
333 F.3d 876, 878 (8th Cir. 2003); United States v. Jefferson, 215 F.3d 820, 825 (8th
Cir. 2000) (refusing to address pro se ineffective assistance of counsel claims on
direct appeal).

       G.   Additional Claims
       We have addressed all of the recognizable issues Cook raised in his pro se
brief. To the extent Cook raises additional issues, the issues are incoherent and
meritless. See 8th Cir. R. 47B.

III.   CONCLUSION
       Based on the foregoing reasons, we affirm Cook’s convictions and sentence.
                       ______________________________




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