     Case: 17-40705      Document: 00514284488         Page: 1    Date Filed: 12/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 17-40705                            FILED
                                  Summary Calendar                  December 22, 2017
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                            Clerk


              Plaintiff - Appellee

v.

BENJAMIN DOUGLAS GUIDRY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CR-1-1


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Benjamin Douglas Guidry appeals the sentence imposed following his
guilty plea conviction for two counts of sexual exploitation of children and one
count of making a false claim against the United States. Guidry argues that:
(1) his counsel was constitutionally ineffective for advising him to accept the
plea agreement, and (2) his 600 month sentence is substantively unreasonable.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40705      Document: 00514284488    Page: 2   Date Filed: 12/22/2017


                                 No. 17-40705

The Government moves for summary dismissal of the appeal based upon the
appeal waiver in Guidry’s plea agreement or, alternatively, for an extension of
time to file a brief.
      We review the validity of an appeal waiver de novo. See United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The written plea agreement and
the rearraignment transcript reflect that Guidry knowingly and voluntarily
agreed to the appeal waiver, making the appeal waiver enforceable. See United
States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Guidry’s challenge to his
sentence does not fall within the exception to the appeal waiver for a claim of
ineffective assistance of counsel. Accordingly, the appeal is barred by the
waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      As to Guidry’s claim of ineffective assistance of counsel, the record is not
sufficiently developed to permit direct review of this claim. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). Because that is usually the case, a
28 U.S.C. § 2255 motion is the preferred method for raising claims of ineffective
assistance of counsel. See Massaro v. United States, 538 U.S. 500, 503-09
(2003).
      The appeal is therefore DISMISSED without prejudice to Guidry’s right
to pursue an ineffective assistance of counsel claim in a § 2255 proceeding. We
GRANT the Government’s motion to dismiss the appeal, and we DENY the
Government’s alternative motion for an extension of time to file a brief.




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