     Case: 17-60803       Document: 00514576703         Page: 1     Date Filed: 07/30/2018




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

                                     No. 17-60803
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                         July 30, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                  Plaintiff - Appellee

v.

HERMAN MCGEE, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:15-CR-9-1


Before BARKSDALE, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Herman McGee, Jr., pleaded guilty, pursuant to a plea agreement, to one
count of conspiring to possess, with intent to distribute, more than 500 grams
of cocaine and a detectable amount of marijuana, in violation of 21 U.S.C.
§ 846, and one count of conspiring to use/carry a firearm during, and in relation
to, a drug-trafficking crime, in violation of 18 U.S.C. § 924(o). His sole claim
on appeal, which falls within the exception to his appeal and postconviction-


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-60803    Document: 00514576703     Page: 2   Date Filed: 07/30/2018


                                 No. 17-60803

review waiver, is that his attorney rendered ineffective assistance by failing to
object to a three-level enhancement he received under Guideline § 3B1.1(b) for
being a manager or supervisor of criminal activity that involved five or more
participants, or was otherwise extensive.
      District courts are “best suited to developing the facts necessary to
determining the adequacy of representation”. Massaro v. United States, 538
U.S. 500, 505 (2003). Accordingly, our court generally will not consider the
merits of an ineffective assistance of counsel (IAC) claim on direct appeal.
United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). The exception is for
those “rare cases in which the record allows a reviewing court to fairly evaluate
the merits of the claim”. Id. (internal quotation omitted). The “preferred
method” for bringing such a claim is pursuant to a 28 U.S.C. § 2255 motion.
United States v. Bishop, 629 F.3d 462, 469 (5th Cir. 2010) (internal quotation
omitted).
      The record is not sufficiently developed to allow a fair evaluation of
McGee’s IAC claim. We therefore decline to consider it, without prejudice to
collateral review pursuant to a motion under 28 U.S.C. § 2255. E.g., Isgar, 739
F.3d at 841.
      AFFIRMED.




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