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

                                                FILED
                                                                   April 6, 2009
                                No. 08-30463
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MICHAEL MARTIN, JR

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:07-CR-157-2


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Michael Martin, Jr., appeals his guilty plea conviction and sentence for
possession with intent to distribute a quantity of cocaine base in violation of 21
U.S.C. § 841. For the reason that he waived appeal, the judgment is affirmed.
However, Martin argues that counsel was ineffective for failing to advise him
that he would receive a career offender enhancement that would triple his
sentence. He argues that his appeal is not barred by his appeal waiver because



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30463

he is claiming that the ineffective assistance of counsel affected the validity of
his guilty plea. He also argues that the district court record is sufficiently
developed for us to address his ineffective assistance claim on direct appeal. He
alternatively asks us to remand the case to the district court for an evidentiary
hearing so that the issue can then be resolved on direct appeal.
      Martin waived his right to appeal his conviction and sentence except for
a sentence that exceeded the maximum sentence allowed by statute. Ineffective
assistance of counsel claims challenging the guilty plea and waiver provision
themselves survive the waiver. See United States v. White, 307 F.3d 336, 343
(5th Cir. 2002). A claim of ineffective assistance of counsel, however, generally
cannot be addressed on direct appeal unless the claim has been presented to the
district court. See United States v. Brewster, 137 F.3d 853, 859 (5th Cir.1998);
United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992); see also Massaro v.
United States, 538 U.S. 500, 505 (2003).
      We conclude that the factual issues underlying Martin’s claim of
ineffective assistance cannot be determined on the current record. The Supreme
Court has noted that such factual issues are best resolved by the district court
on 28 U.S.C. § 2255 review. See Massaro, 538 U.S. at 502-06. Consequently, we
decline to address Martin’s ineffective assistance claim on direct appeal. Our
decision not to address the issue is without prejudice to Martin raising his
ineffective assistance claim again in a timely § 2255 proceeding.
      AFFIRMED.




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