Conference Calendar UNITED STATES OF AMERICA v. Shawn Michael Hrabal

* 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should not be published and is not precedent except under the limited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. 06-50755
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SHAWN MICHAEL HRABAL
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-224-3
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Shawn Michael Hrabal appeals the sentence imposed following his guilty-
plea conviction for possession with intent to distribute 50 or more grams of
methamphetamine. He argues that the district court erred in not granting him
a three-level reduction in his offense level for acceptance of responsibility. As
part of his plea agreement, Hrabal waived his right to appeal his sentence “on
any ground other than a good faith allegation that it was the result of ineffective
assistance of counsel or prosecutorial misconduct.” The record reflects that
United States Court of Appeals
Fifth Circuit
F I L E D
December 11, 2007
Charles R. Fulbruge III
Clerk

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No. 06-50755
2
Hrabal read, signed, and understood the plea agreement, which included the
above explicit unambiguous waiver of appeal, and the district court informed
Hrabal of the waiver at his rearraignment hearing. Therefore, the waiver was
both knowing and voluntary. See FED. R. CRIM. P. 11(b)(1)(N); see also United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Thus, the waiver bars Hrabal
from arguing on appeal that the district court erred in not granting him a
three-level reduction in his offense level for acceptance of responsibility.
Hrabal argues that his trial counsel was ineffective in that he did not
argue at sentencing that Hrabal was entitled to a three-level reduction for
acceptance of responsibility. In the instant case, the district court did not
conduct an evidentiary hearing, and neither Hrabal nor the Government
presented any evidence addressing the allegation. The record is not sufficiently
developed to allow consideration at this time of Hrabal’s claim of ineffective
assistance of counsel. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006). This does not prejudice Hrabal’s right to raise this claim in a later
postconviction proceeding.
AFFIRMED.

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