* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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.
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

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 ineffectiveassistance 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
3

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
4

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.