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this opinion should not be published and is not precedent except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

September 15, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20251

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY LATROY SMITH,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CV-3715

USDC No. 4:01-CR-738-2

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

Before HIGGINBOTHAM, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Larry Latroy Smith seeks a certificate of appealability

(COA) to appeal the district court’s denial of his 28 U.S.C.

§ 2255 motion challenging his convictions for conspiracy to

commit bank fraud, bank fraud, money laundering, and possession

of counterfeit checks. See 28 U.S.C. § 2253(c)(1). Smith has

not shown that jurists of reason would debate the district

court’s denial of his claims that appellate counsel was

ineffective (1) for not advising him to appeal the district
No. 04-20251

-2-

court’s assessment of a two-level increase pursuant to U.S.S.G.

§ 2S1.1(b)(2)(B) for direct money laundering and (2) for not

advising him to appeal the district court’s assessment of three

levels pursuant to § 3B1.1 for his aggravating role (manager) in

the offense. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Smith’s motion for COA is DENIED as to these claims. 

Because Smith raised for the first time in his COA motion

his claim that his sentence is unconstitutional under Blakely v.

Washington, 542 U.S. 296 (2004), this court need not consider it. 

See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). 

Smith has shown that jurists of reason would debate whether

the district erred in denying his claim that appellate counsel

was ineffective for advising him not to appeal the district

court’s denial of the third point for acceptance of

responsibility under § 3E1.1(b). See Slack, 529 U.S. at 484. 

Smith’s motion for COA is GRANTED with regard to this claim. 

However, Smith has not shown in either his COA motion or his

appeal brief that counsel was ineffective. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); United States v. Reinhart,

357 F.3d 521, 525 (5th Cir. 2004). At sentencing, the district

court overruled the Government’s objection to its refusal to

assess a two-level enhancement for obstruction of justice. There

was support in the record for the Government’s position, and the

Government specifically reserved its right to appeal on this

issue. Since an appeal by Smith on the § 3E1.1(b) claim might
No. 04-20251

-3-

have provoked a cross-appeal by the Government on the

obstruction-of-justice issue, defense counsel’s advice to Smith

not to appeal the denial of the third point under § 3E1.1(b) was

within the wide range of reasonable professional conduct. See

Strickland, 466 U.S. at 689. Smith is not entitled to § 2255

relief on this claim. See id.

COA DENIED IN PART; COA GRANTED IN PART; JUDGMENT AFFIRMED.