United States v. Hawkins ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40984
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK WILLIAMS HAWKINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CR-66
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August 4, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jack Williams Hawkins’ motion to file a reply brief out of
time is GRANTED. Hawkins has filed a pro se appeal of his
conviction and sentence for distribution of cocaine. Hawkins
has, through his guilty plea and plea agreement, waived his right
to challenge the search and seizure of contraband. See United
States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991); United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Hawkins
has, by withdrawing his earlier written objections to the
Presentencing Report (PSR), waived his right to argue that the
*
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that this opinion should not be published and is not precedent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.
No. 98-40984
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district court erred in increasing his base offense level because
he possessed a dangerous weapon during the course of his drug
trafficking. He has likewise waived his right to argue that the
Government breached the plea agreement. See United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc)(discussing
difference between waiver and forfeiture of rights).
Hawkins has not shown that the district court committed
error, plain or otherwise, in determining the drug quantity for
sentencing purposes; Hawkins provided no evidence before the
district court disputing the PSR’s factual findings regarding the
amount of drugs he distributed. See United States v. Fitzgerald,
89 F.3d 218, 223 (5th Cir. 1996). Hawkins has likewise not shown
error, plain or otherwise, in the district court’s failure to
dismiss the case based upon double jeopardy. See United States
v. Johnson, 91 F.3d 695, 697 (5th Cir. 1996); see also United
States v. Ursery, 518 U.S. 267, 291-92 (1996).
We decline to review Hawkins’ claim of ineffective
assistance of counsel, as the issue was not sufficiently
developed in the district court. See United States v. Rivas, 157
F.3d 364, 369 (5th Cir. 1998).
AFFIRMED; MOTION TO FILE REPLY BRIEF OUT OF TIME GRANTED.