United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 12, 2004
Charles R. Fulbruge III
Clerk
No. 02-11364
c/w No. 02-10704
c/w No. 02-10975
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM MORRIS RISBY,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-442-1-R
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, William Morris Risby
challenges his convictions and 78-month sentence for conspiracy to
commit mail fraud and mail fraud, the denial of his motion for the
return of his property pursuant to FED. R. CRIM. P. 41(e) (presently
FED R. CRIM. P. 41(g)), and the denial of appointed counsel at his
sentencing hearing. After reviewing the record and the arguments
of counsel, the judgment and the rulings of the district court are
AFFIRMED.
*
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opinion should not be published and is not precedent except under the limited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.
Risby first asserts that his trial counsel rendered
ineffective assistance by failing to object to the district court’s
omission of a requested jury instruction regarding the suspect
nature of informer-accomplice testimony. As a general rule, this
court will decline to review Sixth Amendment claims of ineffective
assistance of counsel on direct appeal unless they were adequately
raised in the district court. See, e.g., United States v. Higdon,
832 F.2d 312, 313, 314 (5th Cir. 1987). An exception to this
general rule is made only if the record is sufficiently developed
with respect to the merits of the claim. United States v.
McCaskey, 9 F.3d 368, 381 (5th Cir. 1993). Here, the record has
not been adequately developed to consider this ineffective-
assistance claim on direct appeal.1
Risby asserts that the district court misapplied U.S.S.G.
§ 5G1.3(c) by not articulating the factors set forth in 18 U.S.C.
§ 3553(a) before ordering his sentence to run consecutively to his
previous undischarged federal sentence. Risby made a general
objection to the fact that the sentence was imposed consecutively.
When a defendant does not object to the district court’s failure to
explain the reason for its imposition of the sentence, as required
under § 3553(a), the review on appeal is for plain error. United
1
Risby’s assertion that the trial court committed plain error by not
reading to the jury the instruction he requested was raised for the first time
in his reply brief. This Court will not consider a new claim raised for the
first time in an appellate reply brief. United States v. Prince, 868 F.2d 1379,
1386 (5th Cir. 1989).
2
States v. Krout, 66 F.3d 1420, 1433-34 (5th Cir. 1995). If the
court did err in failing to consider the factors set forth in
section 3553(a), Risby has failed to show prejudice to his
substantial rights. See United States v. Torrez, 40 F.3d 84, 87-88
(5th Cir. 1994). There was no plain error.
Risby contends that the district court erred in refusing
to appoint him counsel at sentencing. A defendant who persistently
and unreasonably demands the dismissal of counsel and the
appointment of new counsel will be deemed to have knowingly and
voluntarily waived the right to appointed counsel. United States
v. Moore, 706 F.2d 538, 540 (5th Cir. 1983). In light of Risby’s
history of refusing to work with four previous attorneys and his
insistence upon directing trial strategy, his demands for new
counsel were “persistent” and “unreasonable,” constituting a
“knowing and voluntary waiver of counsel.” Id.
In a supplemental brief, Risby argues that his Sixth
Amendment right to a jury trial was violated when the trial judge
increased his sentencing range based on facts that were not found
by a jury beyond a reasonable doubt. Risby concedes that this
argument is foreclosed by circuit precedent, see United States v.
Pineiro, 377 F.3d 464 (5th Cir. 2004), petition for cert. filed
(July 14, 2004) (No. 04-5263), but seeks to preserve it for further
review.
Finally, Risby asserts that the district court erred in
denying his motion for return of property pursuant to FEDERAL RULE OF
3
CRIMINAL PROCEDURE 41(e). On June 16, 1998, Risby produced numerous
documents pertaining to the Therapy and Rehabilitation Centers of
Dallas, Inc. (TRCD), as required by a federal grand jury subpoena.
Following his conviction, Risby moved to order the government to
return these records, and the district court denied this motion.
In response to this court’s inquiry at oral argument, the
government has mooted this claim by returning all the TRCD records
obtained by the grand jury. The government additionally affirms
that it no longer possesses any of Risby’s records.
AFFIRMED.
4