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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-50434

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM EDMOND GOSSETT,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. MO-02-CR-95-ALL

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

William Edmond Gossett appeals from the sentence imposed

following his guilty-plea conviction for possession of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii). Gossett’s motion for leave to file an out-oftime reply brief is GRANTED.

Gossett argues that the Government breached the plea

agreement by failing to argue for a sentence within the guidelines,
2

by failing to argue against the district court’s upward departure,

and by failing to argue in favor of the maximum adjustment for

acceptance of responsibility. Despite Gossett’s argument, the

terms of the plea agreement did not require the Government to argue

for a sentence within the guidelines, argue against the district

court’s upward departure, or argue in favor of the maximum

acceptance of responsibility adjustment. Moreover, the record

indicates that the Government complied with its plea agreement

obligations.

Gossett argues that the Government breached the plea

agreement by misstating to the sentencing court the authorized

length of supervised release and by failing to file a FED. R. CRIM.

P. 35 motion. These arguments need not be considered because they

are raised for the first time in Gossett’s reply brief. See Cinel

v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

Gossett argues that the district court did not follow the

proper procedure when it determined his sentence, and he challenges

the basis of the district court’s sentencing determination. In

Gossett’s plea agreement he waived, inter alia, the right to appeal

his conviction and sentence, except in the event of ineffective

assistance of counsel and certain instances of prosecutorial

misconduct. A defendant may waive his right to appeal as part of

a valid plea agreement if the waiver is knowing and voluntary.

United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). The

district court ascertained that Gossett understood that he was
3

waiving appeal rights. See FED. R. CRIM. P. 11(b)(1)(N). Thus, the

appeal waiver is valid and enforceable and precludes Gossett’s

sentencing challenge. As to these issues, the appeal is DISMISSED.

See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992).

Gossett argues that his counsel’s performance at

sentencing was constitutionally ineffective and that he did not

waive an appeal to the extent his challenge is based on ineffective

assistance of counsel. Gossett’s claims of ineffective assistance

of counsel were not raised in the district court. Thus, the

district court did not make factual findings regarding Gossett’s

allegations, and an analysis of these claims would require speculation regarding the reasons for counsel’s alleged acts and

omissions. See United States v. Kizzee, 150 F.3d 497, 503 (5th

Cir. 1998). We will therefore adhere to our general rule and

decline to consider Gossett’s claim of ineffective assistance of

counsel on direct appeal. See United States v. Bounds, 943 F.2d

541, 544 (5th Cir. 1991).

MOTION GRANTED; DISMISSED IN PART; AFFIRMED IN PART.