USA v. Fisher

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USA v. Fisher

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Case: 08-40619

Document: 00511222129

Page: 1

Date Filed: 09/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-40619 S u m m a r y Calendar September 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s T A R S A Y DEWAYNE FISHER, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Eastern District of Texas N o . 4:07-CR-164-4

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

T a r s a y Fisher appeals his guilty plea conviction and sentence for conspirin g to possess 50 grams or more of a mixture and substance containing a detectPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 08-40619

Document: 00511222129 Page: 2 No. 08-40619

Date Filed: 09/01/2010

a b le amount of cocaine base with intent to distribute. Fisher first argues that h is trial counsel rendered ineffective assistance in connection with his sentencin g . The government invokes the appeal-waiver provision of Fisher's plea agreem e n t and asserts that this claim is barred. In the alternative, the government a s s e r t s that the record is not sufficiently developed to permit consideration of t h e ineffective-assistance claim on direct appeal. In reply, Fisher argues that t h e plea agreement is void, so the waiver provision is inapplicable, because the d is t r ic t court did not follow a stipulation that his base offense level was 32 and in s t e a d imposed the career-offender enhancement. " T h e general rule in this circuit is that a claim of ineffective assistance of c o u n s e l cannot be resolved on direct appeal when the claim has not been raised b e fo r e the district court since no opportunity existed to develop the record on the m e r it s of the allegations." United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2 0 0 8 ) (internal quotation and citation omitted). Ordinarily a habeas corpus proc e e d in g is the proper mechanism for resolving an ineffective-assistance claim. United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999). Because t h e record is not sufficiently developed, we will not consider the ineffective-ass is t a n c e claim. See Gulley, 526 F.3d at 821. We express no opinion on the validit y or enforceability of the waiver. F is h e r contends that the factual basis for his guilty plea is insufficient. He a r g u e s that the indictment, the plea agreement, and the factual basis provided b y the government fail to provide specific, concrete facts showing that his cond u c t satisfied the elements of the conspiracy offense of which he was convicted. He maintains that his claim involves structural error and therefore is not susc e p t ib le to harmless-error analysis. Generally, this court reviews for clear error the district court's acceptance o f a guilty plea as a factual finding. United States v. Reasor, 418 F.3d 466, 470 (5 t h Cir. 2005). Because, however, Fisher did not object to the sufficiency of the fa c t u a l basis underlying his plea in district court, we review for plain error only. 2

Case: 08-40619

Document: 00511222129 Page: 3 No. 08-40619

Date Filed: 09/01/2010

U n ite d States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). A n examination of the record and the indictment shows that Fisher admitt e d that, from January 2000 to August 8, 2007, he agreed with others to possess w it h the intent to distribute 50 grams or more of a mixture and substance cont a in in g a detectable amount of cocaine base, knowing the purpose of the agreem e n t. Because Fisher admitted to facts that encompass the essential elements n e c e s s a r y to prove a drug conspiracy, he has not established reversible plain e r r o r . See United States v. Morgan, 117 F.3d 849, 853 (5th Cir. 1997). Moreover, e v e n if we assume arguendo that there was error with respect to the factual bas is for the plea, Fisher fails to establish reversible plain error, because he does n o t allege on appeal that he would not have pleaded guilty but for the error. See U n ite d States v. London, 568 F.3d 553, 560 (5th Cir. 2009), petition for cert. filed (A u g . 11, 2009) (No. 09-5844). Fisher argues that the judgment should be reformed to preclude the poss ib ilit y of restitution. His argument, which is premised on a misreading of the ju d g m e n t , lacks merit. I n a letter filed pursuant to Rule 28(j) of the Federal Rules of Civil Proced u r e , Fisher attempts to raise two claims that are not presented in his opening b r ie f. We generally decline to address claims not raised in an appellant's initial b r ie f. United States v. Lewis, 412 F.3d 614, 616 (5th Cir. 2005). Fisher has s h o w n no reason for us to depart from our usual practice. The judgment is AFFIRMED. The government's motion to dismiss the a p p e a l is DENIED.

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