United States v. Nelson

* 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that this opinion should not be published and is not precedent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
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41105
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD BERNARD NELSON, also known as Dummy,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CR-32-1
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Clifford Bernard Nelson appeals his sentence for possession
with intent to distribute and distribution of crack cocaine.
He argues that he received ineffective assistance of counsel when
his appointed counsel did not appear at his sentencing hearing.
We have jurisdiction over this appeal despite Nelson’s
appeal waiver, because our review of the plea proceedings reveals
that the magistrate judge did not fulfill the FED. R. CRIM.
P. 11(c)(6) (2001) requirements, and, therefore, the waiver

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No. 02-41105
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was not knowingly and voluntarily made. See United States
v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).
We further find that the record sufficiently addresses
the ineffective assistance claim and, therefore, that its merits
can be addressed on direct appeal. See United States v. Navejar,
963 F.2d 732, 735 (5th Cir. 1992). Nelson, however, has
demonstrated no prejudice suffered from appointed counsel’s
absence from his sentencing proceedings. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). Nelson was represented
by retained counsel at the proceedings, and appointed counsel’s
presence was unnecessary to resolve the sentencing objection at
issue.
AFFIRMED.

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