IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2008
No. 07-51012
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFREDO GALLARZO GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2175-ALL
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Alfredo Gallarzo Garcia was convicted pursuant to a guilty plea of
importing into the United States 500 grams or more of a mixture or substance
containing cocaine and of possessing with the intent to distribute 500 grams or
more of a mixture or substance containing cocaine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(ii), 952(a), 960(a)(1), 960(b)(2)(B). He appeals his conviction and
sentence.
*
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not be published and is not precedent except under the limited circumstances set forth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. 07-51012
Garcia argues that the district court violated his due process rights by
failing sua sponte to order a psychological evaluation and hold a competency
hearing prior to imposing his sentence. However, nothing in Garcia’s demeanor
before the court would have given the district court reasonable cause to believe
that Garcia was mentally incompetent. Moreover, Garcia failed to present any
evidence to the district court indicating that he had a history of irrational
behavior, that his mental health problems prevented him from understanding
the nature and consequences of the proceedings against him, or that his mental
health problems prevented him from assisting properly in his defense. Garcia
has not shown that the district court abused its discretion by failing to sua
sponte consider his competency to be sentenced. See United States v. Messervey,
317 F.3d 457, 463 (5th Cir. 2002); United States v. Davis, 61 F.3d 291, 304 (5th
Cir. 1995).
Garcia also argues that he was denied the effective assistance of counsel
because his attorney failed to adequately investigate his mental health problems
and present to the district court at sentencing evidence calling into question his
competency. We decline to review Garcia’s ineffective assistance of counsel claim
because it was not raised before the district court and the record is not
sufficiently developed for us to fairly evaluate the merits of Garcia’s allegations.
See United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Garcia
remains free to pursue his claim of ineffective assistance of counsel in
accordance with 28 U.S.C. § 2255. See United States v. Garza, 990 F.2d 171, 178
(5th Cir. 1993).
The judgment of the district court is AFFIRMED.
2