United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-50680
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO MORALES HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-21-2
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ricardo Morales Herrera appeals his 125-month sentence for
aiding and abetting a carjacking and possession of a firearm in
relation to a crime of violence, in violation of 18 U.S.C. §§ 2,
924(c)(1), and 2119. He asserts that his trial counsel was
ineffective for failing to move the district court for a mental
competency hearing prior to sentencing.
Generally, this court does not review claims of ineffective
assistance of counsel on direct appeal unless the record is
sufficiently developed to allow us to fairly evaluate the merits
*
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this opinion should not be published and is not precedent except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.
No. 04-50680
-2-
of the issue. See United States v. Higdon, 832 F.2d 312, 313-14
(5th Cir. 1987). In this case, the trial record is adequate to
determine that counsel’s representation was not constitutionally
defective.
At the time Herrera was sentenced, 18 U.S.C. § 4241(a)
(2004) provided that, at any time
prior to the sentencing of the defendant, the defendant
or the attorney for the Government may file a motion
for a hearing to determine the mental competency of the
defendant. The court shall grant the motion, or shall
order such a hearing on its own motion, if there is
reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that
he is unable to understand the nature and consequences
of the proceedings against him or to assist properly in
his defense.
The record shows that counsel alerted the district court to
Herrera’s questionable mental capacity at the outset of the
sentencing hearing. As a result, the district court investigated
the matter and questioned Herrera. The court implicitly applied
the standard in 18 U.S.C. § 4241(a) and determined that Herrera
was able understand the nature and consequences of the
proceedings against him and assist properly in his defense.
In light of the circumstances, counsel’s failure to
explicitly move the court for a competency hearing under
18 U.S.C. § 4241 was not outside the wide range of professionally
competent assistance. Herrera has failed to establish that
counsel’s performance was deficient under Strickland v.
No. 04-50680
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Washington, 466 U.S. 668, 687-90 (1984). Accordingly, he has
failed to show that counsel was ineffective. See id. at 697.
The judgment of the district court is AFFIRMED.