* 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that this opinion should not be published and is not precedent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

April 13, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40690

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO REYES, SR.,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-02-CR-735-1

--------------------

Before JOLLY, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Antonio Reyes, Sr., appeals his guilty-plea conviction and

sentence for possession with intent to distribute a quantity

exceeding 50 kilograms of marihuana. Reyes argues that the

record is insufficient to establish that he was competent to

plead guilty in light of his having suffered severe depression

and attempted suicide in 1998. He asserts that when the district

court received notice of these facts, which were contained in the

PSR, the court should have sua sponte invalidated his guilty plea
No. 03-40690

-2-

and ordered a competency hearing. He also notes that he

experienced pain from a prior surgical procedure involving his

neck and back and that he took pain medication to relieve his

symptoms. Additionally, Reyes contends that his attorney

provided ineffective assistance of counsel by failing to inquire

prior to rearraignment whether Reyes had any history of mental

illness.

At rearraignment, Reyes responded negatively to the district

court’s question regarding whether he had any mental health

problems. The district court raised the issue sua sponte at

sentencing, noting that the PSR stated that Reyes had attempted

suicide. Reyes stated that he had been released from medical

treatment. Although Reyes had pain medication to help him treat

symptoms from neck and back surgery, he stated that he was not

taking this medication at the time of sentencing, and he did not

challenge the voluntariness of his guilty plea. Reyes’ counsel

stated that, based on his conversations with Reyes, he had no

reason to doubt Reyes’ competency. There is no evidence in the

record that Reyes had a history of irrational behavior, nor is

there evidence of prior medical opinions regarding competency.

Under these circumstances, the district court’s determination to

proceed with sentencing was not clearly arbitrary or unwarranted. 

See United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995);

United States v. Birdsell, 775 F.2d 645, 648 (5th Cir. 1985). 

The evidence does not show that Reyes was unable to understand
No. 03-40690

-3-

the nature and consequences of the proceedings against him or to

properly assist in his own defense. See Godinez v. Moran, 509

U.S. 389, 396 (1993).

Because the record regarding ineffective assistance is not

adequately developed, we dismiss this issue without prejudice to

Reyes’ ability to raise it in a 28 U.S.C. § 2255 proceeding. See

United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998). 

AFFIRMED.