United States of America, Plaintiff-appellee, v. Jeffrey Scott Depenbrock, Defendant-appellant, 79 F.3d 1154 (9th Cir. 1996)

MEMORANDUM^** 

We do not decide Depenbrock's ineffective assistance of counsel claim. " ' [T]he customary procedure in this Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255, and this Court has been chary of analyzing insufficiency of counsel claims on direct appeal.' " United States v. Rewald, 889 F.2d 836, 859 (1989), amended, 902 F.2d 18 (9th Cir. 1990) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). The purpose behind this general rule is to "permit [ ] the defendant to develop a record as to what counsel did, why it was done, and what, if any prejudice resulted." Id. (quotation omitted). Because additional facts are necessary to determine whether there is any merit to Depenbrock's claim of ineffective assistance, it is left for collateral review. United States v. Robinson, 967 F.2d 287, 290 (9th Cir. 1992).

Though phrased as a substantial evidence challenge, Depenbrock's second argument is in substance a claim that 18 U.S.C. § 922(g) (1) is unconstitutional under United States v. Lopez, 115 S. Ct. 1624 (1995), unless possession of the firearm was itself an economic activity substantially affecting interstate commerce. Depenbrock claims that it is not enough to show that the firearm had been transported in interstate commerce. We are bound by the holding in United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995), to the proposition that " [s]ection 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause." Id. at 1462 n. 2.

AFFIRMED.