Rivera

MEMORANDUM ***

Appellant Tony Rivera (“Rivera”) appeals his conviction and sentence in the United States District Court for the Central District of California. On August 29, 2005, a jury found Rivera guilty of Count II of a two-count indictment, charging him with knowingly and intentionally possessing with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. § 841 .

1. Rivera argues that the district court erred in finding the government established beyond a reasonable doubt that he had three qualifying prior felony drug offense convictions as alleged in the information filed pursuant to 21 U.S.C. § 851 . Although Rivera argued § 851 violated due process and the Sixth Amendment, he did not challenge the underlying convictions themselves in the district court, nor did he object to the government’s exhibits offered to prove the three convictions. We hold that Rivera has waived the right to appeal the sufficiency of the government’s evidence because he failed to raise this challenge in the district court and has not shown good cause for his failure. See 21 U.S.C. § 851 (c).

2. Rivera next challenges the sufficiency of the information filed pursuant…

concurring in part and dissenting in part.

I dissent from the holding in Part Three of the memorandum disposition that the record is not sufficiently developed to evaluate whether any prejudice resulted from any deficiencies in counsel’s performance. Rivera advances claims of ineffective assistance of counsel based on trial counsel’s failure to object (1) to the testimony by the government’s lead witness, Detective Jacoby, that Rivera told him that he lived in the apartment that was searched, and (2) to the government’s repeated characterization of the apartment as belonging to Rivera. The record on direct appeal is sufficiently developed to permit a determination of these ineffective assistance of counsel claims because even if Rivera’s trial counsel was deficient for failing to make these objections, Rivera has not shown that he was prejudiced by counsel’s performance. See Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (requiring that deficient performance prejudice the defense so as to deprive the defendant of a fair trial).

Assuming that Rivera’s acknowledgment to Detective Jacoby that he lived in the apartment was suppressable as the…