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

                                                                   FILED
                                                                December 19, 2008
                               No. 04-31197
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MICHAEL HARRIS, also known as Twin

                                           Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:03-CR-257-9


                             Consolidated with
                       No. 05-30337 and No. 05-30340


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Count 1 of an indictment charged Michael Harris, Robert Thomas, Johnny
Graham, and others with conspiracy to possess with intent to distribute five
kilograms or more of powder cocaine and 50 grams or more of crack cocaine.
Other counts of the indictment alleged related crimes. After four days of trial,


      *
      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should not be published and is not precedent except under the limited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.
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                      c/w No. 05-30337 and No. 05-30340

Harris signed a written plea agreement providing that the Government would
agree to a ten-year sentence in exchange for his pleading guilty to Count 1 and
to a charge of using a communication device to facilitate the conspiracy. The
court accepted the plea and adjudged Harris guilty. Six weeks later, Harris
asked to withdraw his plea. His attorney believed that such a request was not
warranted and was against his client’s interests. Accordingly, his attorney
requested a status conference because Harris wished to withdraw his plea,
appeared at the status conference, explained the situation and then requested
that the court hear directly from Harris as to his reasons for seeking to
withdraw the plea. Harris addressed the court directly. The court denied the
motion to withdraw the plea and later sentenced him to ten years of
imprisonment; ten years was the amount requested in the plea agreement and
was less than the guidelines range calculated in the Pre-sentence Report.
      Without a written agreement, Thomas pleaded guilty to Count 1. He also
pleaded guilty to attempting to possess with intent to distribute between 500
grams and 5 kilograms of powder cocaine and to using a communication device
to facilitate the conspiracy. In a written factual basis, Thomas admitted only to
trafficking in cocaine powder under Count 1 and made no mention of crack.
Thomas’s presentence report (PSR) nonetheless calculated a sentence based on
relevant conduct that included trafficking in crack. The court sentenced Thomas
to 18 years of imprisonment, below the advisory guidelines minimum of 30 years.
      Also without a written agreement, Graham pleaded guilty to Count 1.
Graham’s factual basis, like Thomas’s, mentioned only powder cocaine and did
not mention crack. As part of sentencing, the court considered the relevant
conduct of trafficking in crack and sentenced Graham to 25 years, below the
advisory guidelines minimum sentence of 30 years.
      All three defendants filed timely notices of appeal. Their appeals have
been consolidated.


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                       c/w No. 05-30337 and No. 05-30340

Michael Harris
      Harris contends that he was deprived of counsel because his lawyer
refused to argue for withdrawal of his guilty plea. Because the lawyer believed
Harris’s plea agreement was good for Harris, he did not argue for withdrawal
but stood by while Harris argued for withdrawal. Although Harris couches his
claim as a denial of counsel, it is, in substance, a claim of ineffective assistance
of counsel. As a general rule, we do not review claims of ineffective assistance
of counsel for the first time on direct appeal. United States v. Lampazianie, 251
F.3d 519, 527 (5th Cir. 2001). “[A] claim of ineffective assistance of counsel
generally cannot be addressed on direct appeal unless the claim has been
presented to the district court; otherwise there is no opportunity for the
development of an adequate record on the merits of that serious allegation.”
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992). The record is not
sufficiently developed to allow resolution of Harris’s claim on direct appeal.
Therefore we decline to address this claim on direct appeal. See Navejar, 963
F.2d at 735.
Robert Thomas
      Thomas contends that he was entitled to credit for acceptance of
responsibility. He argues that he admitted the essential elements of the powder
cocaine offense charged in Count 1 of the indictment and that he was not
required to admit trafficking in crack cocaine as also charged in Count 1.
      The sentencing court’s decision not to give credit for acceptance of
responsibility will be affirmed unless it is “‘without foundation,’ a standard of
review more deferential than the clearly erroneous standard.” United States v.
Anderson, 174 F.3d 515, 525 (5th Cir. 1999). Although a guilty plea is a factor
to be considered in determining the adjustment for acceptance of responsibility,
the defendant is not entitled to the adjustment as a matter of right. U.S.S.G. §
3E1.1 comment (n.3). “[A] defendant is not required to volunteer, or affirmatively


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admit, relevant conduct beyond the offense of conviction” in order to receive
credit for accepting responsibility       U.S.S.G. § 3E1.1, comment. (n.1(a)).
“However, a defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility.” Id.
      Thomas contends that he is not required to admit to “all points asserted
by the government with regard to any and all criminal conduct.” We agree.
However, the conduct in question here was not “extrinsic” to the cocaine offense
to which he pleaded guilty, but rather part and parcel of it.
      The district court recited the Guideline and application note and showed
that it was well familiar with the entire conspiracy case, having “taken 23 guilty
pleas, heard part of a trial and done some sentencing.” The district court found
it “frivolous” for the defendants “to put the [G]overnment through the hoops” by
objecting to the relevant conduct of crack trafficking, where evidence adduced
at sentencing, in the pleas of numerous other defendants, and in Harris’s
abbreviated trial made it “real obvious” that the conspiracy involved large
amounts of crack.     There is an ample foundation for the district court’s
conclusion that Thomas’s challenge to the relevant conduct was “frivolous and
not acceptance of responsibility contemplated by the guideline.” This contention
lacks merit.
      Thomas also urges this court to vacate his sentence in light of Guideline
Amendment 706 that reduces the offense level for crimes involving crack
cocaine. We decline to address this issue because it is best left to the discretion
of the sentencing court in the first instance in a motion brought under 18 U.S.C.
§ 3582(c)(2). See United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998).
Our ruling is without prejudice to his right to seek relief from the district court
on this point.




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                      c/w No. 05-30337 and No. 05-30340

Johnny Graham
      Graham contends that his plea was invalid because he pleaded guilty only
to the powder cocaine “half” of Count 1 and did not admit guilt to trafficking in
crack cocaine. He also contends that his sentence was unlawful because it was
based on relevant conduct.
      It is not significant that Graham admitted trafficking only in powder
cocaine while Count 1 charged trafficking in cocaine and crack.             If the
Government conjunctively charges alternate elements or means of committing
a crime, the crime is established if one of those alternative elements is admitted
or proved. Omari v. Gonzales, 419 F.3d 303, 309 n. 10 (5th Cir. 2005); United
States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
      Moreover, as long as the defendant understands the maximum potential
sentence, he is fully aware of the plea’s consequences, and his guilty plea will be
upheld. United States v. Jones, 905 F.2d 867, 868-69 (5th Cir. 1990). Graham
pleaded guilty to conspiring to traffic in at least five kilograms of powder
cocaine. The district court correctly advised him that the statutory maximum
term of imprisonment for that crime was life in prison; the additional allegation
of 50 grams or more of crack cocaine had no effect on the statutory sentencing
range. Because Graham was aware of the maximum sentence, his plea was not
rendered involuntary by his refusal to admit relevant conduct or by any belief
that his sentence would not be based on relevant conduct. See Jones, 905 F.2d
at 868-69.
      Graham also contends that he could not lawfully be sentenced based on
relevant conduct involving crack because he did not admit that conduct. Under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, a fact must be
admitted by the defendant or proved beyond a reasonable doubt if that fact is
needed to support a sentence exceeding the statutory maximum sentence.
United States v. Booker, 543 U.S. 220, 231 (2005). Apprendi does not apply to


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                     c/w No. 05-30337 and No. 05-30340

“a fact used in sentencing that does not increase a penalty beyond the statutory
maximum.” United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000). Graham
was sentenced below the statutory maximum sentence. Accordingly, Apprendi
did not prohibit the district court from determining the drug amount relevant
to sentencing under the Guidelines. See United States v. McWaine, 290 F.3d
269, 274 (5th Cir. 2002). Graham’s below-guideline sentence based on relevant
conduct as found by the sentencing judge is valid.
      For the foregoing reasons, the judgments of the district court are
AFFIRMED.




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