United States v. Herman McGee, Jr. ( 2018 )

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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