United States v. Porter , 231 F. App'x 358 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20180
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUBERT RAY PORTER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(4:03-CR-437-12)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Hubert Ray Porter, Jr. appeals the sentence imposed following his plea
of guilty to possession with intent to distribute less than 50 kilograms of marijuana. Even though
Porter has been released from prison, his appeal is not moot because he is serving a term of
supervised release, which is a part of his total sentence. See United States v. Lares-Meraz, 452 F.3d
352, 355 (5th Cir. 2006).
Porter contends that his criminal history score was incorrect, because some prior offenses
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
were related and should not have been counted separately. We need not resolve this issue, because,
as the government contends, Porter has validly waived his right to appeal any sentence that is not an
upward departure from the range provided by the Sentencing Guidelines.
The district court ascertained that Porter had read and understood the plea agreement which
had an unambiguous waiver provision. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005). Further, at the court’s request, the government accurately recited the waiver provision at the
plea hearing. When the court subsequently reminded Porter of the waiver, he indicated his
understanding. The court thus satisfied FED. R. CRIM. P. 11(b)(1)(N), and the waiver is valid. As
Porter raises no unwaived issue, the district court’s judgment is affirmed.
We decline to consider Porter’s claims of ineffective assistance of counsel for the first time
on direct appeal, because the record is not sufficiently developed. See United States v. Lampazianie,
251 F.3d 519, 527 (5th Cir. 2001).
Porter has filed a motion asking this court to take judicial notice of the dates of his prior
offenses as set forth in his Texas judgments of conviction. Porter’s valid appeal waiver obviates
consideration of the state convictions. The motion is therefore denied.
JUDGMENT AFFIRMED; MOTION DENIED.
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