United States v. Fuller

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 5, 2002
• Docket: 01-50891
• Status: Unpublished

Opinion

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 -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2-

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 -3-

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.