* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion s hould not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 U.S.S.G. § 3A1.2(b).

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20133

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES GRADY HENDRICKSON,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(96-CR-191-2)

December 9, 1997

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM: *

Charles Grady Hendrickson pleaded guilty to being a felon in po ssession of a firearm in

violation of 18 U .S.C. § 922(g)(1). The district court sentenced Hendrickson to 96 months of

imprisonment, three years o f supervised release and a $50 special assessment. The district court

based its sentence upon the Presentence Investigation Report (PSI). The sentence included a three

level increase for assaulting a police officer in a manner creating a substantial risk of bodily harm. 23 U.S.S.G. § 3E1.1.

4 386 U.S. 738 (1967).

5 See United States v. Rawls

, 85 F.3d 240 (5th Cir. 1996); United States v. Kuban

, 94

F.3d 971 (5th Cir. 1996).

6 Generally, a PSI bears sufficient indicia of reliability so that a sentencing court may

rely upon it. United States v. Jobe , 101 F.3d 1046, 1065 (5th Cir. 1996).

7 See United States v. Valencia , 44 F.3d 269, 274 (5th Cir. 1995).

2 The district court denied Hendrickson a three level decrease for acceptance o f responsibility. 3

Hendrickson appeals. Tho mas J. Bevans, Hendrickson’s counsel, has filed a motion to withdraw

along with an accompanying brief as required by Anders v. California

. 4 Hendrickson responded to

the Anders brief, raising one additional issue. He also filed a motion to dismiss counsel and proceed

pro se

.

After considering all of the issues raised and conducting a thorough review of the record, we

find no meritorious issues presented in this appeal. 18 U.S.C. § 922(g)(1), the provision under which

Hendrickson pleaded guilty, is constitutional both on its face and as applied to Hendrickson. 5 The

district court did not err in calculating Hendrickson’s sentence. A three level increase under Section

3A1.2(b) was justified in this case based upon the facts presented in the PSI. 6 As the police officers

approached the stopped vehicle in which the defendant was a passenger, they observed a shotgun in

the defendant’s hands, and they felt a substantial risk of serious bodily harm. Standing alone,

Hendrickson’s assertions to the contrary are insufficient to overcome the presumption that the PSI

is reliable. 7 Furthermore, the district court did not err by denying a three level decrease in sentencing8 Whether a defendant has sufficiently demonstrated acceptance of responsibility is a

factual question reviewed under a standard that is more deferential than “clear error”. U nited States

v. Spires , 79 F.3d 464, 467 (5th Cir. 1996).

9 Hendrickson argues that the denial of a decrease in sentencing level cannot be based

upon challenging facts during sentencing. He relies upon U nited States v. Smith

, 106 F.3d 350 (11th

Cir. 1996). The Eleventh Circuit, e n banc

, vacated its decision in Smith because “the panel opinion

went too far.” U

nited States v. Smith

, 1997 WL 676564, *2 (11th Cir. 1997) (en banc). The S mith

Court found that the district court did not err in denying a sentence level reduction under U.S.S.G.

§ 3E1.1 when the defendant challenged the factual basis of his guilty plea during sentencing. Id

.

10 United States v. Gibson , 55 F.3d 173, 179 (5th Cir. 1995).

11 United States v. Higdon , 832 F.2d 312, 314 (5th Cir. 1987).

3 level for acceptance of responsibility. 8 During sentencing, Hendrickson argued that he did not hold

the gun or threaten the officers as alleged in t he PSI. The district court did not err in finding this

action inconsistent with the acceptance of responsibility. 9

Hendrickson also argues that he received ineffective assistance of counsel because his counsel

did not request an evidentiary hearing on a disputed sentencing matter. Hendrickson did not raise

this issue in the district court. As a general rule, we do not consider a Sixth Amendment ineffective

assistance of counsel contention on direct appeal when it was not raised in the district court. 10 We

consider this argument on direct appeal only when the record is adequately developed so that the

merits of the claim may be fairly considered. 11 This is not one of those rare cases. The record does

not contain any information concerning the factual basis for this claim and for counsel’s decision.

We have found no meri

t o rio us issues presented in this appeal. Counsel is excused from

further responsibilities in this matter. This appeal is DISMISSED. Hendrickson’s motion to proceed

pro se is DENIED.