UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20133
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES GRADY HENDRICKSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(96-CR-191-2)
December 9, 1997
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Grady Hendrickson pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced Hendrickson to 96 months of
imprisonment, three years of supervised release and a $50 special assessment. The district court
based its sentence upon the Presentence Investigation Report (PSI). The sentence included a three
level increase for assaulting a police officer in a manner creating a substantial risk of bodily harm.2
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2
U.S.S.G. § 3A1.2(b).
The district court denied Hendrickson a three level decrease for acceptance of responsibility.3
Hendrickson appeals. Thomas J. Bevans, Hendrickson’s counsel, has filed a motion to withdraw
along with an accompanying brief as required by Anders v. California.4 Hendrickson responded to
the Anders brief, raising one additional issue. He also filed a motion to dismiss counsel and proceed
pro se.
After considering all of the issues raised and conducting a thorough review of the record, we
find no meritorious issues presented in this appeal. 18 U.S.C. § 922(g)(1), the provision under which
Hendrickson pleaded guilty, is constitutional both on its face and as applied to Hendrickson.5 The
district court did not err in calculating Hendrickson’s sentence. A three level increase under Section
3A1.2(b) was justified in this case based upon the facts presented in the PSI.6 As the police officers
approached the stopped vehicle in which the defendant was a passenger, they observed a shotgun in
the defendant’s hands, and they felt a substantial risk of serious bodily harm. Standing alone,
Hendrickson’s assertions to the contrary are insufficient to overcome the presumption that the PSI
is reliable.7 Furthermore, the district court did not err by denying a three level decrease in sentencing
3
U.S.S.G. § 3E1.1.
4
386 U.S. 738 (1967).
5
See United States v. Rawls, 85 F.3d 240 (5th Cir. 1996); United States v. Kuban, 94
F.3d 971 (5th Cir. 1996).
6
Generally, a PSI bears sufficient indicia of reliability so that a sentencing court may
rely upon it. United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996).
7
See United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).
2
level for acceptance of responsibility.8 During sentencing, Hendrickson argued that he did not hold
the gun or threaten the officers as alleged in the PSI. The district court did not err in finding this
action inconsistent with the acceptance of responsibility.9
Hendrickson also argues that he received ineffective assistance of counsel because his counsel
did not request an evidentiary hearing on a disputed sentencing matter. Hendrickson did not raise
this issue in the district court. As a general rule, we do not consider a Sixth Amendment ineffective
assistance of counsel contention on direct appeal when it was not raised in the district court.10 We
consider this argument on direct appeal only when the record is adequately developed so that the
merits of the claim may be fairly considered.11 This is not one of those rare cases. The record does
not contain any information concerning the factual basis for this claim and for counsel’s decision.
We have found no meritorious issues presented in this appeal. Counsel is excused from
further responsibilities in this matter. This appeal is DISMISSED. Hendrickson’s motion to proceed
pro se is DENIED.
8
Whether a defendant has sufficiently demonstrated acceptance of responsibility is a
factual question reviewed under a standard that is more deferential than “clear error”. United States
v. Spires, 79 F.3d 464, 467 (5th Cir. 1996).
9
Hendrickson argues that the denial of a decrease in sentencing level cannot be based
upon challenging facts during sentencing. He relies upon United States v. Smith, 106 F.3d 350 (11th
Cir. 1996). The Eleventh Circuit, en banc, vacated its decision in Smith because “the panel opinion
went too far.” United States v. Smith, 1997 WL 676564, *2 (11th Cir. 1997) (en banc). The Smith
Court found that the district court did not err in denying a sentence level reduction under U.S.S.G.
§ 3E1.1 when the defendant challenged the factual basis of his guilty plea during sentencing. Id.
10
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
11
United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
3