     Case: 16-60193      Document: 00513837414         Page: 1    Date Filed: 01/17/2017




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

                                    No. 16-60193                              FILED
                                  Summary Calendar                     January 17, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODNEY GERALD HENDERSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CR-114-1


Before JONES, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Rodney Gerald Henderson pleaded guilty pursuant to a written plea
agreement to conspiracy to distribute methamphetamine, and the district
court sentenced him to 235 months of imprisonment. He contends that the
district court erred when it increased his offense level by two levels pursuant
to U.S.S.G. § 2D1.1(b)(1). The Government responds by moving to dismiss the
appeal or, alternatively, for summary affirmance based upon the appeal waiver


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60193

in Henderson’s plea agreement. Henderson opposes the Government’s motion,
arguing that the appeal waiver should not be enforced because he was misled
by his trial attorney into believing that he was waiving only his right to appeal
his conviction, not his sentence. The Government replies that Henderson’s
allegations regarding his trial attorney constitute a claim of ineffective
assistance of counsel, which should be resolved in the first instance in the
district court. It therefore requests that the case be remanded to the district
court for a resolution of the claim or that the appeal be dismissed without
prejudice to Henderson raising an ineffectiveness claim in a 28 U.S.C. § 2255
proceeding.
      This court reviews the validity of an appeal waiver de novo, see United
States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002), and it does so based upon
the record before it, cf. United States v. Corbett, 742 F.2d 173, 177 (5th Cir.
1984). The written plea agreement and the rearraignment transcript reflect
that Henderson 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). Because Henderson’s challenge to his sentence does
not fall within the exception to the appeal waiver—his right to bring a claim of
ineffective assistance of counsel—his appeal is barred by the waiver. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Accordingly, the
Government’s motion to dismiss the appeal is GRANTED. We DENY the
Government’s alternative request for summary affirmance as that procedure
is generally reserved for cases in which the parties concede that the issues are
foreclosed by circuit precedent. United States v. Lopez, 461 F. App’x 372, 374
n.6 (5th Cir. 2012); see United States v. Houston, 625 F.3d 871, 873 n.2 (5th
Cir. 2010).




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                                No. 16-60193

      To the extent that Henderson is raising a claim of ineffective assistance
of counsel on direct appeal, the record is not sufficiently developed to permit
direct review of the claim. See United States v. Isgar, 739 F.3d 829, 841 (5th
Cir. 2014). Furthermore, because a § 2255 motion is the preferred method for
raising claims of ineffective assistance of counsel, our ruling is without
prejudice to any right Henderson may have to raise such claims on collateral
review.   See Massaro v. United States, 538 U.S. 500, 503-09 (2003).        We
therefore DENY the Government’s motion for remand, see id., but GRANT the
Government’s motion to dismiss the appeal without prejudice to Henderson
seeking relief under § 2255.
      APPEAL DISMISSED.




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