United States v. Shelly Mixon

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 4, 2019
• Docket: 18-51042
• Status: Unpublished

Opinion

Case: 18-51042 Document: 00515103832 Page: 1 Date Filed: 09/04/2019

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

FILED No. 18-51042 September 4, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHELLY MIXON,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:18-CR-175-2

Before STEWART, Chief Judge, and HIGGINSON and COSTA, Circuit Judges.

PER CURIAM: * Shelly Mixon appeals the sentence imposed following her guilty-plea conviction for conspiracy to possess with the intent to distribute heroin. Citing United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018), she complains that the district court’s oral pronouncement of the special condition of supervised release requiring her to submit to searches of her property and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-51042 Document: 00515103832 Page: 2 Date Filed: 09/04/2019

No. 18-51042

person was insufficient and conflicted with the written judgment. Mixon concedes that, as part of her plea, she waived the right to appeal her sentence, but she notes that she reserved the right to raise a claim of ineffective assistance, and she asserts that the record is sufficiently developed to consider the claim on direct appeal. The Supreme Court has emphasized that a 28 U.S.C. § 2255 motion is the preferred method for raising claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-09 (2003). Contrary to Mixon’s argument, her claim was not developed sufficiently in the district court to enable this court to evaluate it. See United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). We therefore decline to consider Mixon’s ineffective assistance of counsel claim without prejudice to her right to assert the claim on collateral review. See United States Isgar, 739 F.3d 829, 841 (5th Cir. 2014); Higdon, 832 F.2d at 314. APPEAL DISMISSED.