IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40128
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENE ADRIAN MCCRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CR-37-11
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January 9, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gene Adrian McCray appeals his conviction and sentence for
conspiracy to distribute cocaine base. McCray argues that the
district court clearly erred in determining the relevant quantity
of drugs attributable to him for sentencing purposes and violated
Fed. R. Crim. P. 32(c)(1) by failing to make a specific finding
as to the amount of cocaine attributable to him. He contends
that his guilty plea was involuntary as a result of his counsel’s
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-40128
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alleged misrepresentations as to the probable length of his
sentence. He also argues that the Government breached the plea
agreement by failing to move for a downward departure on the
basis of his attempted substantial cooperation.
Because McCray did not present any evidence to refute the
probation officer’s calculation of the relevant quantity of
cocaine base, the district court’s acceptance of the probation
officer’s estimate is not clearly erroneous. See United States
v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). The district court
was not required to make further findings as to the relevant
quantity of cocaine base because it adopted the Presentence
Report over McCray’s unsubstantiated objections. See United
States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992). Because
the Government did not bargain away its discretion to move for a
downward departure, McCray’s claim that the Government breached
the plea agreement by not so moving is meritless. See United
States v. Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993).
We decline to review McCray’s ineffective assistance of
counsel claim because the claim was not raised before the
district court and the record is not sufficiently developed on
the merits of McCray’s allegations. See United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075
(1988).
Judgment is AFFIRMED.