United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 11, 2006
Charles R. Fulbruge III
Clerk
No. 03-40957
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK GRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-26-2
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Derrick Gray appeals his guilty-plea conviction for
possession of cocaine with intent to distribute, in violation of
21 U.S.C. § 841, and resulting 97-month sentence. He contends
that the district court erred in failing sua sponte to dismiss
his retained attorney and either appoint new counsel or afford
him time to retain new counsel due to an actual conflict of
interest between him and his trial attorney, violating his Sixth
Amendment rights.
*
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this opinion should not be published and is not precedent except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. 03-40957
-2-
The Government argues that Gray’s challenge is barred by the
waiver-of-appeal provision in the plea agreement, wherein Gray
waived his right to appeal except as to any sentencing-guidelines
determinations. “[A] defendant may, as part of a valid plea
agreement, waive his statutory right to appeal his sentence.”
United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).
It also argues that there was no conflict of interest and, even
if there was, Gray suffered no resulting prejudice, regarding the
plea, sentence, or otherwise.
The precise nature of Gray’s appeal is unclear. Although he
briefly suggests that, aside from any ineffective assistance of
counsel, his guilty plea was unknowing or involuntary and the
waiver provision was invalid, he does not sufficiently argue
these points and has thus waived any such challenges. See United
States v. Thibodeaux, 211 F.3d 911, 912 (5th Cir. 2000).
Gray’s complaint is best described as a complaint that
ineffective assistance, in the form of a conflict of interest,
renders invalid his guilty plea and the waiver-of-appeal
provision therein, hence we should vacate his conviction or
remand for resentencing. Although we have held that ineffective
assistance of counsel claims challenging the plea and waiver
themselves survive the waiver, see United States v. White, 307
F.3d 336, 343 (5th Cir. 2002), we have also held that we will not
address such claims for the first time on direct appeal where
they were not sufficiently developed in the trial court and the
No. 03-40957
-3-
record is sparse See United States v. Brewster, 137 F.3d 853,
859 (5th Cir. 1989). This is such a case, where the district
court never directly addressed the possibility of ineffective
assistance. Gray can raise this argument under 28 U.S.C. § 2255.
The district court’s judgment is AFFIRMED.