The Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1038

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Morris E. Jones, * * Appellant. *

___________ Submitted: June 10, 1997 Filed: July 31, 1997

___________ Befo re RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, an d WOLLMAN, Circuit Judge.

___________ WOLLMAN, Circuit Judge. Morris Jones appeals from the sentence entered by the district court following 1 Jones’s p lea of guilty to one count of possessing cocaine base with the intent t o distribute, in violation of 21 U.S.C. § 841(a)(1). We affirm.-2- I. On March 8, 1996, St. Lou is police obtained and executed a search warrant for the residence at which Jones was staying. Officers discovered 9.81 grams of cocaine base, a digital scale, and Jones’s driver’s license inside a black leather jacket in a hall closet. A loaded .38 caliber semi-automatic pistol was also found in the closet. A se archof Jones’s vehicle produced an additional 5.52 grams of cocaine base. Jone s was arrested for possession of a controlled substance and unlawful use of a weapon.
On April 29, 1996, St. Louis police observed Jones driving at a high rate o f speed and pursued him. After Jones abandoned his car, the officers continued t o pursue him on foot and witnessed Jones remove and discard a black leather jacket , which was recovered and found to contain 7.27 grams of cocaine base. A federal grand jury ind

icted Jones on three counts: count I charged Jones with being a felon in possession of a firearm; count II charged that on March 8, 1996, Jones posse ssed 15.33 grams of cocaine base with the intent to distribute; and count II I charged that on April 29, 1996, Jones possessed 7.27 grams of cocaine base with the intent to distribute. Pursuant to a plea agreement, Jones plead guilty to count II, and the other two counts were dismissed. The presentence investigation report (PSR) calculated Jo nes’s base offense level to be t wenty-eight, based upon the combined amounts of cocaine base specified i n counts I and II. The PSR recommended that Jones receive a two-level increase fo r possession of a firearm, the basis for count III, and a three-level decrease fo r acceptance of responsibility. Jones fai led to either file timely objections to the PSR or to move for an extension of time in which to file objections.
On t he day of sentencing, Jones’s attorney filed written objections to the PSR, arguing that Jones’s sentence should be based only on the conduct specified in count-3-

II. Jones’s attorney explained that the objections were filed late because she had been in trial ou t of state and that although Jones had been making an effort to contact he r regarding the PSR, she had not had a chance to talk with him until the week prior t o sentencing. The district court refused to consider the untimely objections, adopted the factual statement s contained in the PSR as its findings of fact, and sentenced Jones to 140 months’ imprisonment based on the conduct specified in all three counts.
II.
Jones’s sole argument on appeal is that trial counsel’s failure to file timel y obj ections to the PSR constituted ineffective assistance. Save for those exceptiona l cases in which the result of not considering the claim would be a “‘plain miscarriage of justice or inconsistent with substantial justice,’” United States v. Martin , 59 F.3 d 767, 771 (8th Cir. 1 995) (citation omitted), a claim of ineffective assistance is usually not cognizable on direct appe al “because facts outside the record generally need to be developedto resolve the claim.” United States v. Hawkins , 78 F.3d 348, 351 (8th Cir.), cert. denied , 117 S. Ct. 126 (1996). Jones argues that the record est ablishes his ineffective assistance claim because it discloses that o bjections were available to his counsel and sets forth the reasons for counsel’s failure to timely file those objections. In United States v . Logan , 49 F.3d 352 (8th Cir. 1995), the a

ppellant made a similar argument, contending that his ineffective assistanc e claim could be decided on the face of the record and that no additiona l findings ne eded to be made. We rejected this argument, stating, “‘(1) it would b e inappropriate for us to examine the merits of the claim if the trial court has not done so and (2) our failure to address the incompetency of counsel issue will not prejudice the appellant.’” Id. at 361 (quoting United States v. Holy Bear , 624 F.2d 853, 856 (8th Cir. 1980)).-4-

Similar ly, the district court in this case did not consider Jones’s ineffectiv e assistance claim. Consequentl y, it is not possible to determine whether trial counsel’s failure to file a timely objection amounted to ineffective assistance, for the record does notrefle ct whether counsel’s representation fell below an objective standard o f reasonablen ess or whether Jones was prejudiced by her performance. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). Indeed, Jones concedes that on th e reco rdbefore us he cannot show that he is entitled to a shorter sentence or that th e sentence imposed was improperly computed. Because Jones is free to file a motion for relief under 28 U.S .C. § 2255, our refusal to consider this claim on direct appeal will not result in any injustice to him.
The sentence is affirmed. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.