United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2007
Charles R. Fulbruge III
Clerk
No. 06-50792
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL HINES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-218
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Miguel Hines appeals his 30-month sentence following his
guilty-plea conviction for distributing crack cocaine within 1,000
feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860.
Hines argues that his sentence was unreasonable because it was
calculated based upon conduct which was neither admitted,
adjudicated, or proven, and therefore violated United States v.
Booker, 543 U.S. 220, 260-63 (2005). He asserts that he was
sentenced based on 2.75 grams of crack cocaine, rather than 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this opinion should not be published and is not precedent except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.
1.66 grams alleged in Count 2 of the indictment to which he pleaded
guilty.
The Government seeks enforcement of the plea agreement in
which Hines waived the right to appeal any aspect of his sentence
except certain claims such as ineffective assistance of counsel.
Hines does not address the waiver provision in his own brief, and
he has not filed a reply to the Government’s brief. A review of
the record shows that the appeal waiver was knowing and voluntary
and bars review of Hines’s sentencing issue. See United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005).
Hines also argues that he was denied effective assistance of
counsel. A claim of ineffective assistance of counsel generally
will not be considered for the first time on direct appeal because
there has not been an opportunity to develop evidence on the claim.
United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001).
The record here has not been sufficiently developed to permit
consideration of Hines’s claims on direct appeal.
Accordingly, without prejudice to Hines’s right to file a
motion pursuant to 28 U.S.C. § 2255, the judgment of the district
court is AFFIRMED.
2