IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 17, 2009
No. 08-10487 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RODERICK BERNARD HUNTER
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 3:07-CR-211-M
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
On January 11, 2008, Appellant Roderick Hunter pled guilty to conspiracy
to commit bank robbery and to bank robbery. He was sentenced to 70 months
imprisonment and three years of supervised release. Hunter appeals claiming
he received ineffective assistance of counsel. He also claims that the district
court erred by applying a sentence enhancement for obstruction of justice and
by not reducing his sentence based on acceptance of responsibility.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10487
As part of his plea agreement, Hunter waived his right to appeal his
sentence unless his sentence exceeded the statutory maximum punishment or
contained an arithmetic error, which it did not. Hunter’s arguments that the
district court erred in applying an enhancement and failed to apply a reduction
are barred by the waiver-of-appeal provision in his plea agreement. Accordingly,
as to the sentencing issues, Hunter’s appeal is DISMISSED.1
Hunter’s plea reserved his right to bring a direct appeal of claims of
ineffective assistance of counsel. However, Hunter cannot raise for the first time
on direct appeal an ineffective assistance of counsel claim that was not developed
in the district court.2 These claims are dismissed without prejudice to their
pursuit in collateral proceedings. This is the case regarding Hunter’s claims
that are based on his lawyer not objecting to either the obstruction enhancement
or the court’s denial of an acceptance of responsibility reduction.3
Prior to sentencing, Hunter did, however, raise an ineffective assistance
claim that was developed in the district court regarding, generally, his counsel’s
lack of communication with him. The district court heard Hunter’s complaints
at a hearing and decided that his attorney was performing acceptably. We have
reviewed the record and find that, regardless of whether or not Hunter’s counsel
provided acceptable service, Hunter has failed to show that but for his counsel’s
alleged unprofessional errors, there is a reasonable probability the result of the
proceeding would have been different.4 The record of the hearing shows that
1
See 5th Cir. R. 42.2; U.S. v. Chavez, 196 F.3d 1257 (5th Cir. 1999).
2
See U.S. v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992).
3
We note that Hunter’s attorney did file objections to the presentencing report that
included an objection to the recommended denial of an acceptance of responsibility reduction.
Additionally, at the sentencing hearing, Hunter’s attorney engaged the court in significant
discussion over the obstruction enhancement.
4
Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
2
No. 08-10487
Hunter was aware of the Government’s evidence against him and of his defense
strategy. With this knowledge, he chose to plead guilty. Thus, as to this claim
of ineffective assistance of counsel, the judgment of the district court rejecting
it is affirmed.
AFFIRMED in part and DISMISSED without prejudice in part.
3