*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published

and is not precedent except in the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-31300

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM HOWARD PENN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

96-CV-60005-1

October 1, 1998

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

After a trial by jury, William Penn was found guilty of conspiracy to possess with the intent

to distribute cocaine base (21 U.S.C. §§ 846 and 841(a)(2)); possession with the intent to distribute

cocaine base (21 U.S.C. 841(a)(2)); and interstate travel in the aid of illegal activity (18 U.S.C.

1952(a)(3)). On direct appeal, Mr. Penn makes the following assignments of error: (1) the district

judge abused his discretion by allowing the Government to introduce evidence of previousinterstate

drug transactions conducted by Mr. Penn without giving defense counsel the notice required byRule

404(b) of the Federal Rules of Evidence, and (2) Mr. Penn’s counsel at sentencing was ineffective

in that he failed to object to a presentence investigation (PSI) that categorized his client as a career

offender. The first assignment of error is without merit. The second assignment of error is

improperly raised on direct appeal. We affirm.
 

2

 United States v. Morgan 117 F.3d 849, 861 (5th Cir. 1997)

 

3

 United States v. Roberson 6 F.3d 1088, 1094 (5th Cir. 1993).

2

The appellant contends that the Government’s introduction, without prior notice to the

defense, of evidence that the appellant had committed previous interstate drug transactions violates

Rule 404(b) of the Federal Rules of Evidence. The record clearly reflects that the defense had

requested such notice, and that the Government had responded that no such evidence would be

introduced. Later, at trial, prosecution witnesses repeatedly testified, over defense objections, that

the appellant had taken part in numerous unindicted interstate drug transactions. The Government

asserted that Count 3 ofthe indictment, alleging interstate travel in the aid of illegal activity, required

the prosecution to prove a continuous business enterprise in narcoticstrafficking, not just an isolated

event. The Government further contended that as this evidence was necessary to prove an essential

element of the crime charged, it was intrinsic evidence, and not subject to the provisions of Rule

404(b). We agree.

In deciding whether evidence of other bad actsis “intrinsic,” and therefore notsubject to Rule

404(b), we examine whether the evidence of the other act and the evidence of the crime charged are

inextricably intertwined, or if both acts are part of the same criminal episode, or ifthe other acts were

necessary preliminaries to the crime charged.2 The appellant was indicted for interstate travel in aid

of illegal activity, in violation of 18 U.S.C. 1952. To prove a statutory violation under this Act, the

Government must prove the defendant engaged in a continuous enterprise; evidence of an isolated

criminal act will not suffice as proof.3 As the Government was statutorily required to prove other bad

acts as part of a violation of 18 U.S.C. 1952, the evidence of these other bad actsisintrinsic to Count

3 ofthe indictment. As intrinsic evidence, it is beyond the scope of Rule 404(b), and the Government

is not legally obligated to give the defense notice of intent to introduce such evidence.

The appellant also contends that his counsel at sentencing provided ineffective assistance, in

violation of appellant’s Sixth Amendment right to competent counsel. The appellant concedes that

such a claim “generally cannot be addressed on direct appeal unless the claim has been presented to
 

4 United States v. Fry 51 F.3d 543, 545 (5th Cir. 1995)

 

5

 Strickland v. Washington 466 U.S. 668, 104 S. Ct. 2055 (1984).

 

6

 United States v. Morgan 117 F.3d 849, 860 (5th Cir. 1997).

3

the district court; otherwise there is no opportunity for the development of an adequate record on the

merits ofthat serious allegation”.4 The appellant now asserts that the case at bar is an admittedly rare

exception to that rule. In doing so, the appellant contends that the PSI given to the district judge

over-represents the seriousness of his criminal history, and that defense counsel’s failure to object

on this issue constitutes ineffective assistance.

To prove ineffective assistance, an appellant must show that counsel’s performance fellbelow

an objective standard of reasonableness, and that, but for counsel’s unprofessional errors, there is a

reasonable probability the results of the proceedings would have been different.5 Appellant contends

that the record alone is adequate in this case for this Court to make that determination. We disagree.

At the heart of this assignment of error is appellant’s contention that had counsel objected to

his client being labelled a career offender, the sentencing judge would have sustained the objection,

and the sentence would be different. Clearly, the district judge has the authority to depart downward

from the guidelines if he feels the “career o ffender” label over-represents the defendant’s criminal

history.6 The question is, was the district judge in this case inclined to sustain such an objection had

it been timelymade? In this case the record is insufficient to provide an answer to that question. As

the record alone does not provide adequate information to answer that question, we dismiss

appellant’s claim of ineffective assistance of counsel without prejudice, allowing the appellant the

remedy provided by 28 U.S.C. 2255, so that a better informed court may rule on that claim.

AFFIRMED.