USA v. Charles Hunter
UNPUBLISHED OPINION FILED. [16-11303 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 08/15/2017 for Appellant Charles Hunter [16-11303]
Date Filed: 07/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-28-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Charles Hunter pleaded guilty to one count of aiding and abetting
possession with intent to distribute methamphetamine and was sentenced to
the statutory maximum sentence of 240 months of imprisonment and a threeyear term of supervised release. On appeal, he contends that the district court
procedurally erred by applying a two-level sentencing enhancement under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm, a two-level sentencing
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/25/2017
enhancement under § 2D1.1(b)(12) for maintaining a premises for the purpose
of distributing methamphetamine, and a four-level sentencing enhancement
under U.S.S.G. § 3B1.1(a) for being an organizer or leader of drug trafficking
activity involving five or more participants.
Hunter concedes that our review is for plain error. To prevail, he 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, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Relief under the fourth prong is not “automatic if the other three prongs are
met.” United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012)
At a minimum, Hunter has failed to make an adequate showing as to the
fourth prong. He contends that we should exercise our discretion to correct
any clear or obvious error which affected his substantial rights because his
retained trial counsel rendered ineffective assistance on a number of grounds.
However, to credit this argument would first require us to conclude that
counsel was ineffective. As a general rule, claims of ineffective assistance are
not reviewed on direct appeal where, as here, those claims have not been
presented to the district court. United States v. Haese, 162 F.3d 359, 363 (5th
Absent the ineffective assistance claims, he makes no other
argument that he can satisfy the fourth prong of the plain error test. See
United States v. Scroggins, 599 F.3d 433, 447-48 (5th Cir. 2010) (a party who
raises issues but fails to brief them adequately abandons them on appeal).
Accordingly, Hunter has not demonstrated that the district court
committed reversible plain procedural error. See Puckett, 556 U.S. at 135.
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