United States of America, Appellee, v. James E. Smith, Appellant, 81 F.3d 1147 (D.C. Cir. 1996)

JUDGMENT

This appeal was heard on the record from the United States District Court for the District of Columbia and on the briefs and arguments of counsel. The court has accorded the arguments full consideration and has determined that the issues presented occasion no need for a published opinion. See D.C. Cir. Rule 36(b).

Smith's double jeopardy claim fails because any such defense would require evidence outside the record and, thus, was waived by his guilty plea. See United States v. Broce, 488 U.S. 563, 574-78 (1989). Smith's argument that the district court erred when it sentenced him under an enhancement provision based on the quantity of drugs he distributed fails as well. His assertion that the district court failed to inform him at his plea hearing of his exposure to a 20-year sentence under the enhancement provision is simply incorrect as a factual matter. See Defendant's Appendix 67 (transcript of plea hearing). His claim that the sentence enhancement was error because the information did not contain any specification of drug quantity is not supported by circuit precedent. See United States v. Partick, 959 F.2d 991, 996 n. 5 (D.C. Cir. 1992). Finally, Smith's argument that his counsel was ineffective in failing to appeal his sentence fails because Smith has raised no argument that would have succeeded on direct appeal and has not contested application of the direct appeal standard to the arguments he raised.

For these reasons, it is ORDERED that the judgments from which this appeal was taken be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a) (1).