                    UNITED STATES COURT OF APPEALS

                            FIFTH CIRCUIT


                             No. 94-40741
                           Summary Calendar


           UNITED STATES OF AMERICA,
                                       Plaintiff-Appellee,

           versus

           WILLIAM BONNIE FRY,
                                       Defendant-Appellant.



           Appeal from the United States District Court
                 for the Eastern District of Texas

                           (April 25, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

                                  I.

     Pursuant to a plea bargain, William Fry pled guilty to

possession of firearms by a felon under 18 U.S.C. § 922 (g)(1).

The presentence report (PSR) stated that Fry's crime carried a

base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) because he

had a prior felony conviction for involuntary manslaughter and

because one of the firearms involved in the instant offense was a

machine-gun.   The PSR further recommended a one-level enhancement

in the offense level under section 2K2.1(b)(1)(a) because the

offense involved three firearms and a three-level reduction for

acceptance of responsibility under section 3E1.1(a),(b)(1) &

(b)(2).   Based on a total offense level of 20 and a criminal
history category of III, Fry's guideline imprisonment range was

41 to 51 months.

     In his written objections to the PSR and at the sentencing

hearing, Fry argued, inter alia, that his base offense level was

incorrectly calculated because his prior state-court conviction

for involuntary manslaughter was not "a crime of violence" under

2K2.1(a)(3), and because he did not know that one of the weapons

in his possession had been altered so that it could fire

automatically.   The district court overruled Fry's objections,

and sentenced him to a term of imprisonment of 41 months, a

three-year term of supervised release, and a $50 special

assessment.

     On appeal, Fry contends that he should be allowed to

withdraw his guilty plea because of ineffective assistance of

trial counsel and repeats his arguments regarding the calculation

of his base offense level.   We affirm.

                                II.

     Fry first argues that he should be allowed to withdraw his

guilty plea, which he asserts was unknowing and involuntary

because his trial attorney 1) erroneously informed him that the

district court had denied his motion to suppress and 2) provided

flawed advice regarding the consequences of his plea.   Fry

concedes that "[m]any of [his] assertions concerning ineffective




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assistance of trial counsel were not, and could not, be raised

before the trial court."1

     "[A] claim of ineffective assistance of counsel generally

cannot be addressed on direct appeal unless the claim has been

presented to the district court; otherwise, there is no

opportunity for the development of an adequate record on the

merits of that serious allegation."    United States v. Navejar,

963 F.2d 732, 735 (5th Cir. 1992).    Thus, if an ineffective-

assistance claim is raised for the first time on appeal, this

court will reach its merits only "in rare cases where the record

[allows the court] to evaluate fairly the merits of the claim."

United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert.

denied, 484 U.S. 1075 (1988).   This is not one of those rare

cases.

     The record is not adequately developed for this court to

review Fry's assertions of ineffective assistance.    Fry's

reliance on United States v. Santiago, 993 F.2d 504 (5th Cir.

1993), to support his contention that this court should remand

for an evidentiary hearing on his ineffectiveness claims, is

misplaced.   Santiago is an appeal from the denial of the

defendant's motion to vacate sentence under 28 U.S.C. § 2255.

Accordingly, this court should decline to address the matter on



     1. Appellant's Br. at 12. Although Fry sent a letter to the
district court complaining of his attorney's performance, the
letter did not raise the suppression motion issue. Therefore,
counsel's written response in the district court to Fry's
allegations is not adequate to address all of the aspects of the
ineffectiveness claims raised on appeal.

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direct appeal, without prejudice to Butler's right to raise it in

a section 2255 proceeding.   See Higdon, 832 F.2d at 314; see also

United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991)

(claims of ineffective assistance can be resolved on direct

appeal only when the record provides substantial details about

the attorney's conduct).

                               III.

     Next, Fry challenges, as he did in the district court, the

sentence imposed by the district court.   "This court will uphold

a sentence imposed under the Guidelines so long as it is the

product of a correct application of the Guidelines to factual

findings which are not clearly erroneous."    United States v.

Jackson, 22 F.3d 583, 584 (5th Cir. 1994).    The district court's

findings of fact are reviewed for clear error, and its

determination of legal principles is reviewed de novo.    Id.

     Fry argues that the district court incorrectly calculated

his base offense level under U.S.S.G. § 2K2.1(a)(3).   That

section provides for a base offense level of 22 "if the defendant

had one prior felony conviction of either a crime of violence or

a controlled substance offense, and the instant offense involved

a firearm listed in 26 U.S.C. § 5845(a)[.]"   A machine-gun is a

firearm listed in section 5845(a).    Fry does not dispute that he

possessed a "machine-gun" for purposes of section 5845(a);

rather, he contends that section 2K2.1(a)(3) should be read to

imply a scienter requirement and asserts that he did not know

that the gun in question had become a machine-gun by alteration.


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     Whether knowledge is required under section 2K2.1(a)(3) is a

question of first impression in this court.   However, this court

has addressed a similar argument in the context of a neighboring

guideline section.   In United States v. Singleton, 946 F.2d 23,

25-27 (5th Cir. 1991), cert. denied, 502 U.S. 1117 (1992), this

court held that an upward adjustment could be assessed under

section 2K2.1(b)(1) against a felon who possessed a stolen gun

whether or not he knew the gun was stolen.    The Singleton court

noted that "[t]he guidelines drafters have been explicit when

they wished to import a mens rea requirement."    Id. at 25.    The

court reasoned that because the neighboring sections of the

guidelines contain a mens rea requirement, and because statutory

sections are to be construed as coherent wholes, the drafters did

not intend to include a mens rea requirement in section

2K2.1(b)(1).   Id.

     Similarly, the language of section 2K2.1(a)(3) makes no

reference to the defendant's mental state.    The section is plain

on its face and should not, in light of the apparent intent of

the drafters, be read to imply a scienter requirement.    See

Singleton, 946 F.2d at 25.   The cases cited by Fry, Staples v.

United States, 114 S. Ct. 1793 (1994), and United States v.

Anderson, 885 F.2d 1248 (5th Cir. 1989) (en banc), are inapposite

because they deal with convictions for strict liability crimes

rather than with strict liability sentencing enhancements. See

Singleton, 946 F.2d at 26.




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     Fry also argues that his prior state-court conviction for

involuntary manslaughter2 was not a "crime of violence" under

section 2K2.1(a)(3).   Application note 5 of the Commentary to

section 2K2.1 indicates that "crime of violence" is defined in

U.S.S.G. § 4B1.2.   Section 4B1.2 defines crime of violence as:

     any offense under federal or state law punishable by
     imprisonment for a term exceeding one year that--(i)
     has as an element the use, attempted use, or threatened
     use of physical force against the person of another, or
     (ii) is burglary of a dwelling, arson, or extortion,
     involves use of explosives, or otherwise involves
     conduct that presents a serious potential risk of
     physical injury to another.

U.S.S.G. § 4B1.2(1).   Application note 2 of the Commentary to

section 4B1.2 states that "crime of violence" includes "murder,

manslaughter, kidnapping, aggravated assault, forcible sex

offenses, robbery arson, extortion, extortionate extension of

credit, and burglary of a dwelling."

     Thus, the drafters of the guidelines clearly indicated that

manslaughter was to be considered a "crime of violence."   Since

the commentary to section 4B1.2 makes no distinction between

voluntary and involuntary manslaughter, we hold that both are

included.   See United States v. Payton, 28 F.3d 17, 19 (4th Cir.)

(holding that previous involuntary manslaughter conviction

constituted a crime of violence under the Guidelines), cert.

denied, 115 S. Ct. 452 (4th Cir. 1994).




     2. According to the PSR, Fry, who was driving while
intoxicated, ran five vehicles off the road before causing a
head-on collision and killing the passenger of the car he hit.

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     In addition, the record indicates that the conduct which

formed the basis for Fry's previous conviction, causing the death

of another while driving under the influence, was clearly

"conduct that present[ed] a serious potential risk of physical

injury to another."   U.S.S.G. § 4B1.2 (1)(ii).   Thus, the

district court's ruling that Fry's previous conviction

constituted a "crime of violence" was not error.

                                IV.

     For the reasons given above, the judgment of conviction and

sentence imposed by the district court are AFFIRMED.




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