                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10040

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00113-GMN-
                                                 PAL-4
  v.

ERIK DUSHAWN WEBSTER,                            MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                     Argued and Submitted February 14, 2013
                            San Francisco, California

Before: SCHROEDER, NOONAN, and MURGUIA, Circuit Judges.

       The district court sentenced Eric Dushawn Webster to 300 months

imprisonment after a jury convicted him of conspiring to traffic five or more

kilograms of cocaine (in violation of 21 U.S.C. §§ 841(a)(1) and 846) and

conspiring to launder money (in violation of 18 U.S.C. § 1956(h)). Webster

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals both his conviction and sentence. We have jurisdiction under 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a), and we affirm.

       Webster argues first that he was assisted ineffectively by his trial counsel,

who may have failed to relay a plea offer that the Government might have made.

That Webster lacks a clear record of (1) whether an offer was made, and (2)

whether his attorney relayed the offer—if one was made in the first place—is fatal

to his claim. We will not entertain a claim of ineffective assistance of counsel on

direct appeal unless the record is developed well enough to allow us to evaluate

trial counsel’s effectiveness ourselves, or trial counsel’s performance was so

obviously deficient as to have denied the defendant his Sixth Amendment right to

counsel. United States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). This case

presents neither of those circumstances, and we will not remand to the district court

to allow Webster to burnish the record in support of this claim. United States v.

Rahman, 642 F.3d 1257, 1260 (9th Cir. 2011). If Webster wishes to challenge the

effectiveness of the assistance he received at trial, the proper vehicle for his

challenge is a motion made pursuant to 28 U.S.C. § 2255. McGowan, 668 F.3d at

606.

       Webster argues next that he was entitled to a mistrial after his co-defendants

pled guilty, leaving him to face the jury on his own. Webster failed to raise this


                                           2
issue before the district court, so we may reverse only if it was “so obvious” that

Webster was entitled to a mistrial that “a competent district judge” would have

granted him one without even being asked. United States v. Turman, 122 F.3d

1167, 1170 (9th Cir. 1997). On the facts before us, we can hardly conclude the

district court erred so grievously, if at all. After Webster’s co-defendants pled

guilty, the district judge asked both parties to propose a missing co-defendant

instruction. Without objection, the court then adopted the Government’s proposed

instruction, which mirrored Ninth Circuit Model Criminal Jury Instruction 2.14.

That instruction counsels jurors not to concern themselves with absent co-

defendants, and to base their verdict solely on the evidence against the remaining

defendant. We presume the jurors heeded the instruction. United States v.

Maloney, 699 F.3d 1130, 1147–48 (9th Cir. 2012).

      Finally, Webster argues the district court lacked sufficient evidence to

attribute 150 kilograms of cocaine to him when calculating his sentence. “The

determination of the quantity of narcotics involved in an offense is a factual

finding,” which we review for clear error. United States v. Asagba, 77 F.3d 324,

325 (9th Cir. 1996). The Government seized no drugs directly from Webster,

leaving the district court to estimate a quantity for which Webster could be held

responsible. United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir. 1995). The


                                          3
district court did so in light of various facts, including the size of the vehicles

Webster drove in the course of transporting the cocaine, the multiple trips Webster

took in those vehicles, the amount of money Webster was paid for each trip,

Webster’s direction of a co-conspirator who also transported drugs in service of the

conspiracy, and the similarly sized vehicle in which another of Webster’s co-

conspirators carried approximately 150 kilograms of cocaine in one trip. On this

record, the district court’s estimate of the amount of cocaine attributable to

Webster is not illogical, implausible, or unsupported by inferences from facts in

the record. United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012).

      AFFIRMED.




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