   Case: 08-40619       Document: 00511222129          Page: 1    Date Filed: 09/01/2010




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

                                                 FILED
                                                                         September 1, 2010
                                     No. 08-40619
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

TARSAY DEWAYNE FISHER,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                                 No. 4:07-CR-164-4




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Tarsay Fisher appeals his guilty plea conviction and sentence for conspir-
ing to possess 50 grams or more of a mixture and substance containing a detect-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40619    Document: 00511222129 Page: 2         Date Filed: 09/01/2010
                                 No. 08-40619

able amount of cocaine base with intent to distribute. Fisher first argues that
his trial counsel rendered ineffective assistance in connection with his sentenc-
ing. The government invokes the appeal-waiver provision of Fisher’s plea agree-
ment and asserts that this claim is barred. In the alternative, the government
asserts that the record is not sufficiently developed to permit consideration of
the ineffective-assistance claim on direct appeal. In reply, Fisher argues that
the plea agreement is void, so the waiver provision is inapplicable, because the
district court did not follow a stipulation that his base offense level was 32 and
instead imposed the career-offender enhancement.
      “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. Gulley, 526 F.3d 809, 821 (5th Cir.
2008) (internal quotation and citation omitted). Ordinarily a habeas corpus pro-
ceeding is the proper mechanism for resolving an ineffective-assistance claim.
United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999). Because
the record is not sufficiently developed, we will not consider the ineffective-as-
sistance claim. See Gulley, 526 F.3d at 821. We express no opinion on the validi-
ty or enforceability of the waiver.
      Fisher contends that the factual basis for his guilty plea is insufficient. He
argues that the indictment, the plea agreement, and the factual basis provided
by the government fail to provide specific, concrete facts showing that his con-
duct satisfied the elements of the conspiracy offense of which he was convicted.
He maintains that his claim involves structural error and therefore is not sus-
ceptible to harmless-error analysis.
      Generally, this court reviews for clear error the district court’s acceptance
of a guilty plea as a factual finding. United States v. Reasor, 418 F.3d 466, 470
(5th Cir. 2005). Because, however, Fisher did not object to the sufficiency of the
factual basis underlying his plea in district court, we review for plain error only.

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                                 No. 08-40619

United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).
      An examination of the record and the indictment shows that Fisher admit-
ted that, from January 2000 to August 8, 2007, he agreed with others to possess
with the intent to distribute 50 grams or more of a mixture and substance con-
taining a detectable amount of cocaine base, knowing the purpose of the agree-
ment. Because Fisher admitted to facts that encompass the essential elements
necessary to prove a drug conspiracy, he has not established reversible plain
error. See United States v. Morgan, 117 F.3d 849, 853 (5th Cir. 1997). Moreover,
even if we assume arguendo that there was error with respect to the factual ba-
sis for the plea, Fisher fails to establish reversible plain error, because he does
not allege on appeal that he would not have pleaded guilty but for the error. See
United States v. London, 568 F.3d 553, 560 (5th Cir. 2009), petition for cert. filed
(Aug. 11, 2009) (No. 09-5844).
      Fisher argues that the judgment should be reformed to preclude the pos-
sibility of restitution. His argument, which is premised on a misreading of the
judgment, lacks merit.
      In a letter filed pursuant to Rule 28(j) of the Federal Rules of Civil Proce-
dure, Fisher attempts to raise two claims that are not presented in his opening
brief. We generally decline to address claims not raised in an appellant’s initial
brief. United States v. Lewis, 412 F.3d 614, 616 (5th Cir. 2005). Fisher has
shown no reason for us to depart from our usual practice.
      The judgment is AFFIRMED. The government’s motion to dismiss the
appeal is DENIED.




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