     Case: 16-30472      Document: 00513934694         Page: 1    Date Filed: 03/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-30472                                FILED
                                  Summary Calendar                        March 31, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISAAC SMITH, also known as Ike Smith,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CR-168-5


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Isaac Smith pleaded guilty, pursuant to a plea agreement, to one count
of conspiracy to possess one kilogram or more of heroin and two counts of use
of a firearm during and in relation to the commission of a drug trafficking crime
that resulted in death. Smith was sentenced to three consecutive terms of life
imprisonment. He maintains that the district court improperly convicted and
sentenced him pursuant to a plea agreement that was voided by his breach of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-30472     Document: 00513934694       Page: 2   Date Filed: 03/31/2017


                                   No. 16-30472

its terms; he contends that the district court could not enforce a nullified plea
agreement, and, if provided the opportunity, he would have sought to withdraw
his plea and avoid sentencing under the agreement.
      Because Smith did not raise his instant claims in the district court, our
review is for plain error only. See Puckett v. United States, 556 U.S. 129, 135-
36 (2009). To establish plain error, Smith must show a forfeited error that is
clear or obvious and that affects his substantial rights. Id. If he makes such
a showing, this court has the discretion to correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
      The record reflects, and the parties do not dispute, that Smith violated
the plea agreement. However, neither party requested the district court to find
that the plea agreement – which the district court accepted – was breached or
sought to have it voided. Rather, the Government kept its promises and
afforded Smith the benefit of his bargain. While Smith contends that the
Government could not continue with the plea agreement after his breach, he
has offered no authority for the assertion that he – the breaching party – may
demand that the plea agreement be voided and demand relief when the
Government chooses to perform under the plea agreement. But cf. Hentz v.
Hargett, 71 F.3d 1169, 1176 (5th Cir. 1996) (noting that failure of defendant to
fulfill promises under plea agreement affords Government the right to relief);
United States v. Ballis, 28 F.3d 1399, 1409-10 (5th Cir. 1994) (same). Thus,
Smith has not shown that the district court clearly or obviously erred in
allowing the Government to opt to perform. See Puckett, 556 U.S. at 135; see
also United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011) (indicating that
error was not plain where law in this court was unsettled and law in other
circuits did not uniformly favor the defendant).
      AFFIRMED.



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