United States v. Reyes

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40690
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO REYES, SR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-735-1
--------------------
Before JOLLY, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Antonio Reyes, Sr., appeals his guilty-plea conviction and
sentence for possession with intent to distribute a quantity
exceeding 50 kilograms of marihuana. Reyes argues that the
record is insufficient to establish that he was competent to
plead guilty in light of his having suffered severe depression
and attempted suicide in 1998. He asserts that when the district
court received notice of these facts, which were contained in the
PSR, the court should have sua sponte invalidated his guilty plea

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No. 03-40690
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and ordered a competency hearing. He also notes that he
experienced pain from a prior surgical procedure involving his
neck and back and that he took pain medication to relieve his
symptoms. Additionally, Reyes contends that his attorney
provided ineffective assistance of counsel by failing to inquire
prior to rearraignment whether Reyes had any history of mental
illness.
At rearraignment, Reyes responded negatively to the district
court’s question regarding whether he had any mental health
problems. The district court raised the issue sua sponte at
sentencing, noting that the PSR stated that Reyes had attempted
suicide. Reyes stated that he had been released from medical
treatment. Although Reyes had pain medication to help him treat
symptoms from neck and back surgery, he stated that he was not
taking this medication at the time of sentencing, and he did not
challenge the voluntariness of his guilty plea. Reyes’ counsel
stated that, based on his conversations with Reyes, he had no
reason to doubt Reyes’ competency. There is no evidence in the
record that Reyes had a history of irrational behavior, nor is
there evidence of prior medical opinions regarding competency.
Under these circumstances, the district court’s determination to
proceed with sentencing was not clearly arbitrary or unwarranted.
See United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995);
United States v. Birdsell, 775 F.2d 645, 648 (5th Cir. 1985).
The evidence does not show that Reyes was unable to understand

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the nature and consequences of the proceedings against him or to
properly assist in his own defense. See Godinez v. Moran, 509
U.S. 389, 396 (1993).
Because the record regarding ineffective assistance is not
adequately developed, we dismiss this issue without prejudice to
Reyes’ ability to raise it in a 28 U.S.C. § 2255 proceeding. See
United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998).
AFFIRMED.

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