                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                        October 27, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 05-50891
                            Summary Calendar



                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                 versus

                         MATTHEW HERRINGTON,

                                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. 1:04-CR-252
                        --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

     Matthew   Herrington     appeals     his   conviction    following        a

guilty plea for conspiracy to manufacture 500 grams or more of

methamphetamine.    21 U.S.C. §§ 841(a)(1), 846.         He argues that

retained   trial   counsel,   Jorge     Sanchez,   rendered     ineffective

assistance because counsel labored under an actual conflict of

interest and was absent during a critical stage of the proceedings.

He contends that counsel failed to conduct discovery and failed to

facilitate his timely cooperation with the Government and that as


     *
      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this opinion should not be published and is not precedent except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.
a result 1) he was improperly characterized as the leader of the

conspiracy for purposes of the Sentencing Guidelines, 2) he was

unable to receive an additional one point reduction for acceptance

of responsibility as did his co-defendants, and 3) he was deprived

of the opportunity to enter into a timely plea agreement.                   He

further argues    that   the   district      court   failed   to   remedy   the

resulting harm at sentencing.

     “We   have   undertaken     to       resolve    claims   of   inadequate

representation on direct appeal only in rare cases where the record

allowed us to evaluate fairly the merits of the claim.”                United

States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987); see Massaro v.

United States, 538 U.S. 500, 504-05 (2003).             This is not one of

those rare cases.    Without prejudice to Herrington’s right to file

a motion pursuant to 28 U.S.C. § 2255, the judgment of the district

court is AFFIRMED.




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