     Case: 17-31009      Document: 00514739750         Page: 1    Date Filed: 11/28/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 17-31009                            FILED
                                  Summary Calendar                  November 28, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

BARRY DRUILHET, JR., also known as Bird,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CR-183-4


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       A jury convicted Barry Druilhet, Jr., of conspiracy to distribute and
possess with intent to distribute cocaine and use of a communication facility in
causing or facilitating a drug trafficking crime, in violation of 21 U.S.C.
§§ 843(b), 846.     He was sentenced to concurrent imprisonment terms of
240 months and 48 months, with a 3-year term of supervised release. On
appeal, Druilhet argues that his trial counsel rendered ineffective assistance


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   No. 17-31009

by allowing him to testify in support of a motion to exclude the testimony of
Michael McDaniel, a cooperating coconspirator.          He also argues that the
district court erred by imposing a two-level obstruction of justice enhancement
pursuant to U.S.S.G. § 3C1.1.
        Because Druilhet did not challenge the performance of counsel in district
court, the record is not sufficiently developed to assess counsel’s performance.
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014); United States
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). The record does not reflect
counsel’s strategic decisions for seeking exclusion of McDaniel’s testimony, nor
does the record reflect counsel’s strategy for opting to call Druilhet as a
witness.     See Isgar, 739 F.3d at 841; see, e.g., Strickland v. Washington,
466 U.S. 668, 687-95 (1984).       Accordingly, this court declines to consider
Druilhet’s ineffective assistance of counsel argument on direct appeal, without
prejudice to his right to assert it on collateral review. See Isgar, 739 F.3d at
841.
        This court reviews the district court’s interpretation or application of the
Guidelines de novo and its factual findings, such as the finding that Druilhet
obstructed justice, for clear error. See United States v. Juarez-Duarte, 513 F.3d
204, 208 (5th Cir. 2008). Druilhet’s testimony established that he approached
McDaniel after being aware that McDaniel planned to testify against him and
that he provided McDaniel a copy of documents that were relevant to
McDaniel’s cooperation with the Government, including a copy of McDaniel’s
plea agreement. The district court was entitled to infer from this evidence that
Druilhet’s actions were a conscious and deliberate attempt to obstruct or
impede the administration of justice. See Juarez-Duarte, 513 F.3d at 209.
Although Druilhet offered benign explanations for his interaction with
McDaniel, the district court was entitled to reject Druilhet’s explanations as



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                                No. 17-31009

incredible. See United States v. Harms, 442 F.3d 367, 378 (5th Cir. 2006). For
the foregoing reasons, the judgment of the district court is AFFIRMED.




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