United States v. Lucas

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 5, 2000
• Docket: 99-60208
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60208 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER F. LUCAS, also known as Lucas F. Walter,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:96-CR-34-1-BrG - - - - - - - - - - January 4, 2000

Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.

PER CURIAM:*

Walter Lucas appeals from the district court’s resentencing

following a remand after his guilty-plea convictions for

violating the civil rights of a pretrial detainee in his custody

and making a false official statement. The Government has filed

a motion to dismiss the appeal from the sentence imposed by the

district court on remand because Lucas had waived the right to

appeal his sentence as part of the memorandum of understanding.

The Government does not object to Lucas’ appeal from the district

court’s denial of his motion to withdraw his guilty plea.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-60208 -2-

Lucas argues that he should be released from his promise not

to file an appeal because the Government breached the memorandum

of understanding when it requested an upward adjustment,

requested that the court deny the two-level reduction for

acceptance of responsibility, and filed the initial appeal from

the district court’s judgment.

The memorandum of understanding does not bar the Government

from filing an appeal. The Sentencing Guidelines differentiate

between “departures” and “adjustments.” Adjustments vary the

total offense level, whereas departures disregard the calculated

guideline sentences. United States v. Madison, 990 F.2d 178, 183

(5th Cir. 1993); see also United States v. Gaitan, 171 F.3d 222

(5th Cir. 1999). Because the Government did not seek an upward

departure, it did not breach the memorandum of understanding.

The Government’s motion to dismiss the appeal from resentencing

is GRANTED. Lucas’ challenge to § 5G1.2 is therefore DISMISSED.

Because Lucas has not shown that the district court’s denial

of his motion to withdraw his guilty plea was an abuse of

discretion under the circumstances presented here, we AFFIRM the

district court’s denial. United States v. Brewster, 137 F.3d

853, 857 (5th Cir.), cert. denied, 119 S. Ct. 247 (1998).

Because the record has not been fully and adequately developed

with respect to Lucas’ ineffective assistance of counsel claim,

we decline to address it on direct appeal. United States v.

Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987).

AFFIRMED IN PART; DISMISSED IN PART. MOTION GRANTED.