* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50573

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFREY DON LEE,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-95-CR-167-4

- - - - - - - - - -

August 1, 1997

Before JONES, SMITH, and STEWART, Circuit Judges:

PER CURIAM:*

Jeffrey Don Lee appeals from a judgment of conviction and

sentence following a guilty plea for conspiracy to possess with

intent to distribute cocaine in violation of 21 U.S.C. §§

841(a)(1), 846. Lee argues that 1) the Government breached the

plea agreement by failing to give him an opportunity to provide

substantial assistance and in failing to move for a downward

departure pursuant to U.S.S.G. § 5K1.1, p.s.; 2) his counsel was
2

ineffective; 3) the waiver-of-appeal provision in the plea

agreement is invalid; 4) he should have received a reduction in his

sentence for acceptance of responsibility and for being a minor

participant; 5) the district court erred in imposing a $15,000

fine; 6) the district court miscalculated his criminal history

points; and 7) section 841(a)(1) exceeds Congress’ authority under

the Commerce Clause.

Lee has not demonstrated facts which, by a preponderance

of the evidence, support the conclusion that the Government

breached the plea agreement by refusing to move for a § 5K1.1

downward departure and for failing to give him an opportunity to

provide substantial assistance. United States v. Price, 95 F.3d

364, 367 (5th Cir. 1996); United States v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994). 

”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 raised before the district court

since no opportunity existed to develop the record on the merits of

the allegations." United States v. Higdon, 832 F.2d 312, 313-14

(5th Cir. 1987). Because the record is not developed on the merits

of Lee’s ineffective-assistance-of-counsel claims, this court

declines to address them. 

Lee knowingly and voluntarily waived his right to appeal his sentence absent an

upward departure as part of his plea agreement. See United States v. Melancon, 972 F.2d 566, 568

(5th Cir. 1992); see United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994). Lee waived
3

the right to appeal the sentencing issues asserted in his appellate

brief. 
4

This court has determined that § 841 is a valid exercises

of Congress' commerce power and that a conviction under this

section does not require proof of a specific nexus with interstate

commerce. United States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993);

see also United States v. Lopez, 2 F.3d 1342, 1367 n.50 (5th Cir.

1993), aff'd, 514 U.S. 549 (1995) (reaffirming that all drug

trafficking, intrastate as well as interstate, is subject to

regulation under the Commerce Clause).

AFFIRMED.