United States v. Fuller ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50891
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT DOUGLAS FULLER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-00-CR-146-ALL
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August 2, 2002
Before JOLLY, PARKER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Scott Douglas Fuller appeals his guilty-plea conviction and
sentence imposed for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Fuller argues that the
district court judge abused his discretion in denying Fuller’s
motion for recusal. Because Fuller has not demonstrated that
Judge W. Royal Furgeson, Jr., had a bias against him resulting
from a personal, extrajudicial source, Fuller has not shown that
Judge Furgeson abused his discretion in denying the motion for
*
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that this opinion should not be published and is not precedent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.
No. 01-50891
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recusal. See United States v. MMR Corp., 954 F.2d 1040, 1044
(5th Cir. 1992).
Fuller argues that the district court abused its discretion
in denying his motion to withdraw his guilty plea. The district
court determined that Fuller was attempting to abuse the judicial
system, suborn perjury, tamper with witnesses, and obstruct
justice. Because Fuller has not met his burden to establish a
“fair and just reason” for withdrawal of his guilty plea, he has
not shown that the district court abused its discretion in
denying his motion to withdraw his guilty plea. See United
States v. Brewster, 137 F.3d 853, 858 (5th Cir. 1998); United
States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).
Fuller argues that his counsel was ineffective. “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 before the district court since no
opportunity existed to develop the record on the merits of the
allegation.” Brewster, 137 F.3d at 859. Although Fuller raised
his ineffective-assistance allegations in a pro se motion filed
in the district court, he was not entitled to hybrid
representation. See United States v. Ogbonna, 184 F.3d 447, 449
& n.1 (5th Cir. 1999)(no right to hybrid representation on
appeal); see also 5TH CIR. R. 28.7; United States v. Daniels,
572 F.2d 535, 540 (5th Cir. 1978)(no right to hybrid
representation in district court). The district court did not
No. 01-50891
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address these allegations and make findings on each allegation
except to state that David Greenhaw is a good lawyer. Therefore,
we decline to reach the merits of Fuller’s ineffective assistance
claims as the record is not well developed for review.
Fuller argues that the district court erred in applying the
Sentencing Guidelines to his case. Pursuant to his plea
agreement, Fuller waived the right to appeal any aspect of his
conviction and sentence except on the ground of ineffective
assistance of counsel or prosecutorial misconduct. At
rearraignment, the district court advised Fuller that he was
waiving the right to appeal, and Fuller stated that he
understood. Fuller did not ask any questions or express any
confusion concerning the waiver-of-appeal provision. Therefore,
Fuller knowingly and voluntarily waived the right to appeal, and
the waiver is enforceable. See United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999); United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992).
AFFIRMED.