     Case: 17-41237      Document: 00514797495         Page: 1    Date Filed: 01/16/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-41237                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                    January 16, 2019

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                 Plaintiff-Appellee

v.

JIMMY DURISO, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CR-80-1


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       On the first day of his jury trial, after the parties made their opening
statements, Jimmy Duriso, III, decided to plead guilty without a plea
agreement to seven counts of distribution of at least five grams but less than
50 grams of a controlled substance, namely, methamphetamine (actual), in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(viii). He was sentenced within the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-41237

guidelines sentencing range to concurrent 121-month terms of imprisonment
on each count and a total of eight years of supervised release.
      Duriso argues, for the first time, that the Government engaged in
misconduct by playing video clips of his confession during its opening
statement; that the district court erred by failing to enter a written order
following its oral denial of his motion to suppress; and that his trial counsel
rendered ineffective assistance. We note at the outset that this is not one of
the rare cases in which the record provides sufficient detail to allow us to
determine the merits of Duriso’s ineffective assistance of counsel claims, and
we therefore decline to review them without prejudice to Duriso’s ability to
assert them in a 28 U.S.C. § 2255 motion. See Massaro v. United States,
538 U.S. 500, 503-09 (2003); United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014).
      To prevail on his remaining claims, Duriso must show a forfeited error
that is clear or obvious and that affects his substantial rights.          Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error but should do so only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      The record reflects that the district court expressly ruled during the
hearing on Duriso’s motion to suppress that Duriso’s video confession was
admissible on several grounds. Further, the Government advised the court
that it would introduce portions of Duriso’s video confession at trial. Under
the circumstances, Duriso has not shown any error, plain or otherwise,
regarding the Government’s use of his video confession during opening
remarks. See United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010).
      As for Duriso’s assertion that the district court erred by not entering a
written order memorializing its oral decision denying his motion to suppress



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                                 No. 17-41237

his confession, the issue is not adequately briefed. See United States v. Reagan,
596 F.3d 251, 254-55 (5th Cir. 2010); FED. R. APP. P. 28(a)(6), 8(A); 5TH CIR.
R. 28.2.2.   Thus, because Duriso’s brief is not given liberal construction,
see Woodfox v. Cain, 609 F.3d 774, 792 (5th Cir. 2010), this issue is deemed
waived, see Reagan, 596 F.3d at 254.
      Accordingly, the judgment of the district court is AFFIRMED.




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