United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-50434
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM EDMOND GOSSETT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-02-CR-95-ALL
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
William Edmond Gossett appeals from the sentence imposed
following his guilty-plea conviction for possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Gossett’s motion for leave to file an out-of-
time reply brief is GRANTED.
Gossett argues that the Government breached the plea
agreement by failing to argue for a sentence within the guidelines,
*
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this opinion should not be published and is not precedent except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.
by failing to argue against the district court’s upward departure,
and by failing to argue in favor of the maximum adjustment for
acceptance of responsibility. Despite Gossett’s argument, the
terms of the plea agreement did not require the Government to argue
for a sentence within the guidelines, argue against the district
court’s upward departure, or argue in favor of the maximum
acceptance of responsibility adjustment. Moreover, the record
indicates that the Government complied with its plea agreement
obligations.
Gossett argues that the Government breached the plea
agreement by misstating to the sentencing court the authorized
length of supervised release and by failing to file a FED. R. CRIM.
P. 35 motion. These arguments need not be considered because they
are raised for the first time in Gossett’s reply brief. See Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
Gossett argues that the district court did not follow the
proper procedure when it determined his sentence, and he challenges
the basis of the district court’s sentencing determination. In
Gossett’s plea agreement he waived, inter alia, the right to appeal
his conviction and sentence, except in the event of ineffective
assistance of counsel and certain instances of prosecutorial
misconduct. A defendant may waive his right to appeal as part of
a valid plea agreement if the waiver is knowing and voluntary.
United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). The
district court ascertained that Gossett understood that he was
2
waiving appeal rights. See FED. R. CRIM. P. 11(b)(1)(N). Thus, the
appeal waiver is valid and enforceable and precludes Gossett’s
sentencing challenge. As to these issues, the appeal is DISMISSED.
See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).
Gossett argues that his counsel’s performance at
sentencing was constitutionally ineffective and that he did not
waive an appeal to the extent his challenge is based on ineffective
assistance of counsel. Gossett’s claims of ineffective assistance
of counsel were not raised in the district court. Thus, the
district court did not make factual findings regarding Gossett’s
allegations, and an analysis of these claims would require specu-
lation regarding the reasons for counsel’s alleged acts and
omissions. See United States v. Kizzee, 150 F.3d 497, 503 (5th
Cir. 1998). We will therefore adhere to our general rule and
decline to consider Gossett’s claim of ineffective assistance of
counsel on direct appeal. See United States v. Bounds, 943 F.2d
541, 544 (5th Cir. 1991).
MOTION GRANTED; DISMISSED IN PART; AFFIRMED IN PART.
3