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U.S. v. Nelson

United States Court of Appeals, Fifth Circuit
Feb 13, 2007
217 F. App'x 365 (5th Cir. 2007)

Opinion

No. 06-50349 Conference Calendar.

February 13, 2007.

Joseph H. Gay, Jr, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Wayne Frost, State of Texas, District Attorney's Office, Midland County, Midland, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 7:05-CR-128-1.

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.


Jerry Dale Nelson appeals his guilty-plea conviction and sentence for aiding and abetting the attempt to manufacture meth-amphetamine and possession of a firearm in furtherance of a drug-trafficking crime. Nelson argues that the district court erred by denying him a downward departure under U.S.S.G. § 5K2.13 based on diminished mental capacity. He also contends that he may have received ineffective assistance of counsel.

Although the Government seeks to enforce the waiver-of-appeal provision in Nelson's plea agreement, given the inadequacies in the transcription of portions of the rearraignment hearing, we do not enforce the waiver. Because the district court did not misapprehend its authority to depart from the Guidelines under § 5K2.13, we lack jurisdiction to review the court's denial of a downward departure. See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).

To the extent that Nelson raises the issue of ineffective assistance of counsel, the record has not been adequately developed to address this issue on direct appeal. See United States v. Sanchez-Pena, 336 F.3d 431, 445-46 (5th Cir. 2003).

AFFIRMED IN PART; DISMISSED IN PART.


Summaries of

U.S. v. Nelson

United States Court of Appeals, Fifth Circuit
Feb 13, 2007
217 F. App'x 365 (5th Cir. 2007)
Case details for

U.S. v. Nelson

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Jerry Dale NELSON, also…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 13, 2007

Citations

217 F. App'x 365 (5th Cir. 2007)