United States v. Clarence Lee ( 2016 )

Case: 15-60082 Document: 00513451961 Page: 1 Date Filed: 04/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60082
Fifth Circuit
FILED
Summary Calendar April 5, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CLARENCE LEE, Also Known as Clarence Lee, II,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:12-CR-15
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Clarence Lee pleaded guilty of possessing a firearm after having been
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60082 Document: 00513451961 Page: 2 Date Filed: 04/05/2016
No. 15-60082
convicted of a felony. He contends, for the first time on appeal, that his attor-
ney was ineffective in failing properly to investigate Lee’s intellectual disabil-
ities and mental competency, in failing to request a competency hearing, and
in failing to apprise the district court, at sentencing, of Lee’s intellectual disa-
bilities as a mitigating factor. He challenges the conviction and sentence.
The government moves to dismiss the appeal based on an appeal waiver
in the plea agreement or, alternatively, for summary affirmance. We pretermit
the enforceability of the waiver, because we do not reach the merits of the
ineffective-assistance claims in any event, given that the record is not suffi-
ciently developed to allow us to evaluate counsel’s actions. See United States
v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006); see also United States v. Isgar,
739 F.3d 829, 841 (5th Cir. 2014). Our ruling is without prejudice to any right
Lee may have to raise his ineffective-assistance claims on collateral review.
See Isgar, 739 F.3d at 841.
We dispense with further briefing and AFFIRM. We DENY the govern-
ment’s alternative request for summary affirmance―a procedure generally
reserved for cases in which the parties concede that the issues are foreclosed
by circuit precedent. See United States v. Lopez, 461 F. App’x 372, 374 n.6 (5th
Cir. 2012); United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010).
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