United States v. John Wheeler

Case: 13-41250 Document: 00512868929 Page: 1 Date Filed: 12/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 13-41250
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
December 15, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

JOHN MARK WHEELER,

Defendant-Appellant

Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-154-1

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
John Mark Wheeler appeals his guilty plea and sentence for possession
of a firearm by a felon. Wheeler’s challenge to an increase in his offense level
is barred by an appeal waiver. See United States v. Bond, 414 F.3d 542, 544-
46 & n.4 (5th Cir. 2005).
However, Wheeler also contends that his plea and the waiver are invalid
due to ineffective assistance of counsel in the form of erroneous advice about

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-41250 Document: 00512868929 Page: 2 Date Filed: 12/15/2014

No. 13-41250

the sentence Wheeler would receive. Such a claim of ineffective counsel is
expressly preserved in the plea agreement. Nonetheless, we decline to address
it in this direct appeal because the record is not sufficiently developed. See
United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014), cert. denied, 2014 WL
2616172 (Oct. 6, 2014) (No. 13-10484). The claim may be brought in a motion
under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504-06
(2003).
Because the issues Wheeler raises are either barred by the waiver or not
suitable for resolution on direct appeal, the judgment is AFFIRMED. The
Government’s motion for summary affirmance is DENIED. The Government’s
motion for an extension of time to file an appeal brief is DENIED as
unnecessary.