United States v. Huckabee , 306 F. App'x 865 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2009
No. 08-10510
Summary Calendar 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should not be published and is not precedent except under the limited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.
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.
2