United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-50349
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY DALE NELSON, also known as Jerald Nelson,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-128-1
--------------------
Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jerry Dale Nelson appeals his guilty-plea conviction and
sentence for aiding and abetting the attempt to manufacture
methamphetamine and possession of a firearm in furtherance of a
drug-trafficking crime. Nelson argues that the district court
erred by denying him a downward departure under U.S.S.G. § 5K2.13
based on diminished mental capacity. He also contends that he
may have received ineffective assistance of counsel.
Although the Government seeks to enforce the waiver-of-
appeal provision in Nelson’s plea agreement, given the
*
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this opinion should not be published and is not precedent except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. 06-50349
-2-
inadequacies in the transcription of portions of the
rearraignment hearing, we do not enforce the waiver. Because the
district court did not misapprehend its authority to depart from
the Guidelines under § 5K2.13, we lack jurisdiction to review the
court’s denial of a downward departure. See United States v.
Sam, 467 F.3d 857, 861 (5th Cir. 2006).
To the extent that Nelson raises the issue of ineffective
assistance of counsel, the record has not been adequately
developed to address this issue on direct appeal. See United
States v. Sanchez-Pena, 336 F.3d 431, 445-46 (5th Cir. 2003).
AFFIRMED IN PART; DISMISSED IN PART.