                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0528n.06

                                           No. 14-2170

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Jul 24, 2015
UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE WESTERN DISTRICT OF
ALFRED DANELLE SMITH,                                   )   MICHIGAN
                                                        )
       Defendant-Appellant.                             )


       BEFORE: BATCHELDER, GIBBONS, and WHITE, Circuit Judges.


       PER CURIAM. Pursuant to a written plea agreement, Alfred Danelle Smith pleaded

guilty to a superseding felony information charging him with conspiracy to distribute and to

possess with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B)(iii) and 846. After multiple adjournments of his sentencing, Smith filed

pro se motions to disqualify his appointed counsel and to withdraw his guilty plea. The district

court substituted counsel on its own motion, dismissed as moot Smith’s motion to disqualify

counsel, and denied without prejudice his motion to withdraw his guilty plea. At sentencing, the

district court determined that Smith’s status as a career offender resulted in a guidelines range of

262 to 327 months of imprisonment. After considering the sentencing factors under 18 U.S.C.

§ 3553(a), the district court varied downward from that range and sentenced Smith to

188 months of imprisonment consecutive to his undischarged state sentence, followed by eight

years of supervised release. In this appeal, Smith challenges (1) the denial of his motion to

withdraw his guilty plea and (2) the substantive reasonableness of his sentence.
No. 14-2170, United States v. Smith

       Smith first contends that the district court abused its discretion in denying his motion to

withdraw his guilty plea without considering whether he had provided “a fair and just reason” for

his request pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B).          The government

responds that Smith waived this issue by ignoring the district court’s invitation to file a renewed

motion and proceeding to sentencing without objection.             “When a party intentionally

relinquishes or abandons a known right in the district court, the claim is waived and cannot be

asserted on appeal.” United States v. Obi, 193 F. App’x 453, 455 (6th Cir. 2006) (citing United

States v. Olano, 507 U.S. 725, 733 (1993)).

       As grounds for his motion to withdraw his guilty plea, Smith claimed ineffective

assistance of counsel and that he was actually innocent. The district court appointed new counsel

to represent Smith, denied without prejudice his motion to withdraw his guilty plea, and set a

deadline for filing a renewed motion, stating, “This will allow Defendant to consult with new

counsel on the risks and benefits of proceeding with such a motion.” Smith did not file a

renewed motion to withdraw his guilty plea and instead proceeded to sentencing with his new

counsel several months later. In a supplemental sentencing memorandum filed by new counsel,

Smith admitted conspiring to distribute and to possess with intent to distribute 28 grams or more

of cocaine base, accepted responsibility for trafficking between 700 and 1000 kilograms of

marijuana equivalent, and acknowledged the ten-year mandatory minimum sentence—

effectively withdrawing his pro se motion to withdraw his guilty plea. Smith’s failure to renew

his motion and the factual concessions in his supplemental sentencing memorandum constituted

an effective abandonment of his motion to withdraw his guilty plea. See United States v.

Denkins, 367 F.3d 537, 543-44 (6th Cir. 2004).         “Consequently, that challenge is forever

foreclosed, and cannot be resurrected on this appeal.” United States v. Saucedo, 226 F.3d 782,

787 (6th Cir. 2000) (citing Olano, 507 U.S. at 733).

                                               -2-
No. 14-2170, United States v. Smith

       Smith next asserts that his sentence was substantively unreasonable because the district

court did not fully account for all of the § 3553(a) factors. The government responds that Smith

waived the right to appeal his sentence, an issue that we review de novo. See United States v.

McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). In his plea agreement, Smith waived “the right to

appeal any sentence that is at or below the maximum guideline range as determined by the Court

before any upward departure or variance.” During the plea colloquy, the district court ensured

that Smith understood this waiver in accordance with Federal Rule of Criminal Procedure

11(b)(1)(N). The record reflects that Smith’s waiver of the right to appeal his below-guidelines

sentence is valid. See id. at 363.

       In any event, Smith’s sentence was substantively reasonable. We review the substantive

reasonableness of Smith’s sentence under a deferential abuse-of-discretion standard. See Gall v.

United States, 552 U.S. 38, 51 (2007).        In determining that a “significant variance” was

appropriate, the district court expressly considered Smith’s argument regarding his cooperation

with the government. Smith’s wish that the district court had placed even more weight on his

cooperation and imposed the ten-year mandatory minimum sentence, “without more, is

insufficient to justify our disturbing the reasoned judgment of the district court.” United States v.

Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007). Smith has failed to satisfy the heavy burden

of demonstrating that his below-guidelines sentence is substantively unreasonable. See United

States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013); United States v. Curry, 536 F.3d 571, 573

(6th Cir. 2008).

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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