United States v. John Wheeler , 587 F. App'x 218 ( 2014 )


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  •      Case: 13-41250      Document: 00512868929         Page: 1    Date Filed: 12/15/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 13-41250
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    December 15, 2014
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    JOHN MARK WHEELER,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:12-CR-154-1
    Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
    PER CURIAM: *
    John Mark Wheeler appeals his guilty plea and sentence for possession
    of a firearm by a felon. Wheeler’s challenge to an increase in his offense level
    is barred by an appeal waiver. See United States v. Bond, 
    414 F.3d 542
    , 544-
    46 & n.4 (5th Cir. 2005).
    However, Wheeler also contends that his plea and the waiver are invalid
    due to ineffective assistance of counsel in the form of erroneous advice about
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-41250    Document: 00512868929     Page: 2   Date Filed: 12/15/2014
    No. 13-41250
    the sentence Wheeler would receive. Such a claim of ineffective counsel is
    expressly preserved in the plea agreement. Nonetheless, we decline to address
    it in this direct appeal because the record is not sufficiently developed. See
    United States v. Isgar, 
    739 F.3d 829
    , 841 (5th Cir. 2014), cert. denied, 
    2014 WL 2616172
    (Oct. 6, 2014) (No. 13-10484). The claim may be brought in a motion
    under 28 U.S.C. § 2255. See Massaro v. United States, 
    538 U.S. 500
    , 504-06
    (2003).
    Because the issues Wheeler raises are either barred by the waiver or not
    suitable for resolution on direct appeal, the judgment is AFFIRMED. The
    Government’s motion for summary affirmance is DENIED. The Government’s
    motion for an extension of time to file an appeal brief is DENIED as
    unnecessary.
    2
    

Document Info

Docket Number: 13-41250

Citation Numbers: 587 F. App'x 218

Judges: Higginbotham, Jones, Higginson

Filed Date: 12/15/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024