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

                                                                 FILED
                                                               January 14, 2009
                               No. 08-10510
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

LEE WAYNE HUCKABEE

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 6:07-CR-53-3


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Lee Wayne Huckabee appeals the sentence imposed following his
guilty-plea conviction for maintaining drug-involved premises and aiding and
abetting. See 21 U.S.C. § 856(a)(2), 18 U.S.C. § 2. He argues that the district
court erred by denying him an acceptance of responsibility reduction to his
offense level under U.S.S.G. § 3E1.1 (2007). The district court denied the
downward adjustment because of Huckabee’s use of drugs while on pretrial



      *
      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should not be published and is not precedent except under the limited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. 08-10510

release. The district court’s determination that Huckabee’s drug use was
inconsistent with the acceptance of responsibility is not without foundation and
not error, plain or otherwise. See United States v. Juarez-Duarte, 513 F.3d 204,
211 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008); United States v. Watkins, 911
F.2d 983, 984-85 (5th Cir. 1990).
      Huckabee argues that his trial counsel provided him with ineffective
assistance because counsel did not object to the presentence investigation report
or the lack of a level reduction for acceptance of responsibility. The general rule
in this circuit is that a claim of ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before the district
court since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).
Huckabee’s argument is not reviewable on direct appeal in this case because the
record is not sufficiently developed on the issue. We decline to address this
claim of ineffective assistance on direct appeal without prejudice to Huckabee’s
right to bring it in a 28 U.S.C. § 2255 proceeding. See United States v. Gulley,
526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).
      For these reasons, the judgment of the district court is AFFIRMED. The
Government’s motion to supplement the record is GRANTED.




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