IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50263
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL MIGUEL LERMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-96-CR-26-6
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July 17, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Angel Miguel Lerma appeals the sentence he received
following his guilty-plea conviction for attempting to possess
with the intent to distribute a quantity of marijuana, in
violation of 21 U.S.C. § 846. He argues that the sentence should
be vacated because counsel was ineffective and because the
district court erred in calculating the quantity of drugs
attributable to him for sentencing purposes.
*
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that this opinion should not be published and is not precedent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.
No. 97-50263
-2-
Lerma’s ineffective-assistance claims were not raised before
the district court, and the record is thus inadequate for this
court to assess the merits of his claims on direct appeal.
Accordingly, we decline to address the merits of Lerma’s
ineffective assistance claim but do so without prejudice to his
right to raise the issue in a proper proceeding pursuant to 28
U.S.C. § 2255. See United States v. Higdon, 832 F.2d 312, 314
(5th Cir. 1987). We likewise decline Lerma’s request to remand
the case to the district court for further factual development.
See United States v. Fry, 51 F.3d 543, 545 (5th Cir. 1995).
Lerma’s claim that the district court erred in calculating
the amount of drugs attributable to him is barred by the waiver-
of-appeal provision contained in his plea agreement, which
applies to all sentencing claims on direct appeal except those
regarding an upward departure pursuant to U.S.S.G. § 5K2.0. The
sentence he received was not the result of an upward departure.
We have reviewed the record and conclude that the waiver was
informed and voluntary and is therefore binding on Lerma. See
United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
Lerma’s appeal is therefore without merit. Accordingly, it
is DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5th Cir. R. 42.2.
APPEAL DISMISSED.