United States v. Dragon

* 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this opinion should not be published and is not precedent except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
June 21, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20513
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DRAGON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CR-892-1
--------------------
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Richard Dragon appeals his convictions for bankruptcy and
mail fraud. He argues that his counsel’s representation of him
in connection with the aiding and abetting charges constituted a
constructive denial of counsel under United States v. Cronic, 466
U.S. 648 (1984).
The general rule in this circuit is that a claim of
ineffective assistance will not be considered on direct appeal
“when, as here, it was not raised in the district court, because

-- 1 of 2 --

No. 03-20513
-2-
there has been no opportunity to develop record evidence on the
merits of the claim.” United States v. Lampazianie, 251 F.3d
519, 527 (5th Cir. 2001); see also Massaro v. United States, 538
U.S. 500, 504-05 (2003). We conclude that a motion brought under
28 U.S.C. § 2255 would be preferable to direct appeal for
deciding Dragon’s Cronic claim. See Massaro, 538 U.S. at 504-05.
The district court’s judgment is therefore AFFIRMED without
prejudice to Dragon’s right to raise this claim in a 28 U.S.C.
§ A2255 motion.
AFFIRMED.

-- 2 of 2 --