     Case: 12-11014      Document: 00512589375         Page: 1    Date Filed: 04/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 12-11014                                  FILED
                                  Summary Calendar                             April 8, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JACK BRITTON KYLE,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:11-CR-94-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jack Britton Kyle pleaded guilty pursuant to a written plea agreement
to committing tax evasion in violation of 26 U.S.C. § 7201, and he was
sentenced within the Guidelines to 30 months of imprisonment and a one-year
term of supervised release. Under the terms of the plea agreement’s appeal
waiver, Kyle reserved the right to challenge the voluntariness of his guilty plea
and to raise a claim of ineffective assistance of counsel.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-11014     Document: 00512589375      Page: 2   Date Filed: 04/08/2014


                                  No. 12-11014

      Prior to sentencing, Kyle filed a motion to withdraw his plea agreement
and guilty plea on the grounds that he was unaware of certain defenses when
he entered into the plea agreement and pleaded guilty and that counsel failed
to pursue and advise him of those defenses. The district court denied Kyle’s
motion, and Kyle has filed this pro se appeal, arguing that the district court
erred in denying his motion and that his counsel rendered ineffective
assistance.
      With respect to the district court’s denial of Kyle’s motion to withdraw
his guilty plea, the record does not reflect, nor has Kyle shown, that the district
court’s decision to deny the motion was based on an error of law or a clearly
erroneous assessment of the evidence. See United States v. McKnight, 570 F.3d
641, 645 (5th Cir. 2009). Thus, the district court did not abuse its broad
discretion in denying the motion. See United States v. Carr, 740 F.2d 339, 344
(5th Cir. 1984).
      Claims of ineffective assistance of counsel usually “cannot be resolved on
direct appeal when [they have] not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (quotation
marks and citation omitted). Absent such a record, an appellate court “may
have no way of knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive or was taken because the counsel’s
alternatives were even worse.” Massaro v. United States, 538 U.S. 500, 505
(2003). Further, without factual development, an appellate court may not be
able to determine if an alleged error was prejudicial. Id. Thus, in most cases,
the preferred method of raising such claims is a 28 U.S.C. § 2255 proceeding.
Id. at 504-06. Here, though there was some discussion in the district court of
Kyle’s attorney’s strategy and Kyle’s proposed defenses, we conclude the record



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                                 No. 12-11014

is insufficient for us to resolve this matter on direct appeal. See Cantwell, 470
F.3d at 1091. We therefore dismiss Kyle’s claim of ineffective assistance of
counsel without prejudice to raising it in a 28 U.S.C. § 2255 proceeding.
      AFFIRMED.




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