IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50573
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY DON LEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-167-4
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August 1, 1997
Before JONES, SMITH, and STEWART, Circuit Judges:
PER CURIAM:*
Jeffrey Don Lee appeals from a judgment of conviction and
sentence following a guilty plea for conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1), 846. Lee argues that 1) the Government breached the
plea agreement by failing to give him an opportunity to provide
substantial assistance and in failing to move for a downward
departure pursuant to U.S.S.G. § 5K1.1, p.s.; 2) his counsel was
*
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that this opinion should not be published and is not precedent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.
ineffective; 3) the waiver-of-appeal provision in the plea
agreement is invalid; 4) he should have received a reduction in his
sentence for acceptance of responsibility and for being a minor
participant; 5) the district court erred in imposing a $15,000
fine; 6) the district court miscalculated his criminal history
points; and 7) section 841(a)(1) exceeds Congress’ authority under
the Commerce Clause.
Lee has not demonstrated facts which, by a preponderance
of the evidence, support the conclusion that the Government
breached the plea agreement by refusing to move for a § 5K1.1
downward departure and for failing to give him an opportunity to
provide substantial assistance. United States v. Price, 95 F.3d
364, 367 (5th Cir. 1996); United States v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994).
”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). Because the record is not developed on the merits
of Lee’s ineffective-assistance-of-counsel claims, this court
declines to address them.
Lee knowingly and voluntarily waived his right to appeal his sentence absent an
upward departure as part of his plea agreement. See United States v. Melancon, 972 F.2d 566, 568
(5th Cir. 1992); see United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994). Lee waived
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the right to appeal the sentencing issues asserted in his appellate
brief.
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This court has determined that § 841 is a valid exercises
of Congress' commerce power and that a conviction under this
section does not require proof of a specific nexus with interstate
commerce. United States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993);
see also United States v. Lopez, 2 F.3d 1342, 1367 n.50 (5th Cir.
1993), aff'd, 514 U.S. 549 (1995) (reaffirming that all drug
trafficking, intrastate as well as interstate, is subject to
regulation under the Commerce Clause).
AFFIRMED.
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