USA v. Huckabee

Filing 920090114

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit

FILED
No. 08-10510 Summary Calendar
January 14, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. LEE WAYNE HUCKABEE Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 6:07-CR-53-3

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Lee Wayne Huckabee appeals the sentence imposed following his guilty-plea conviction for maintaining drug-involved premises and aiding and abetting. See 21 U.S.C. § 856(a)(2), 18 U.S.C. § 2. He argues that the district court erred by denying him an acceptance of responsibility reduction to his offense level under U.S.S.G. § 3E1.1 (2007). The district court denied the downward adjustment because of Huckabee's use of drugs while on pretrial

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10510 release. The district court's determination that Huckabee's drug use was inconsistent with the acceptance of responsibility is not without foundation and not error, plain or otherwise. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008); United States v. Watkins, 911 F.2d 983, 984-85 (5th Cir. 1990). Huckabee argues that his trial counsel provided him with ineffective assistance because counsel did not object to the presentence investigation report or the lack of a level reduction for acceptance of responsibility. The general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations." United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). Huckabee's argument is not reviewable on direct appeal in this case because the record is not sufficiently developed on the issue. We decline to address this claim of ineffective assistance on direct appeal without prejudice to Huckabee's right to bring it in a 28 U.S.C. § 2255 proceeding. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008). For these reasons, the judgment of the district court is AFFIRMED. The Government's motion to supplement the record is GRANTED.

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