     Case: 16-11371      Document: 00514576428         Page: 1    Date Filed: 07/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 16-11371
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           July 30, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

DAMIEN ANTIONE JONES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-300-2


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Damien Antione Jones pleaded guilty to
conspiracy to interfere with commerce by robbery, a crime of violence (Count
One); using, carrying, and brandishing a firearm during and in relation to a
crime of violence (Count Two); three counts of interference with commerce by
robbery (Count Three, Count Five, Count Seven); and using, carrying,
brandishing, and discharging a firearm during and in relation to a crime 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11371     Document: 00514576428        Page: 2   Date Filed: 07/30/2018


                                     No. 16-11371

violence (Count Eight). As part of the plea agreement, Jones waived the right
to challenge his conviction and sentence on appeal or in a collateral proceeding.
However, he reserved the right to bring a direct appeal of a sentence exceeding
the statutory maximum punishment or any arithmetic error at sentencing, to
challenge the voluntariness of his plea or waiver, and to bring a claim of
ineffective assistance of counsel.
      Jones contends that the district court abused its discretion in denying
his motion to withdraw his guilty plea. We may entertain Jones’s challenge of
the district court’s denial of his motion to withdraw his plea, notwithstanding
the appeal waiver. See United States v. Henderson, 72 F.3d 463, 465 (5th Cir.
1995).
      The district court’s order denying Jones’s motion to withdraw his guilty
plea is reviewed for an abuse of discretion. United States v. McKnight, 570
F.3d 641, 645 (5th Cir. 2009). The following seven factors are considered:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal
would prejudice the Government; (3) whether the defendant has delayed in
filing his withdrawal motion; (4) whether withdrawal would substantially
inconvenience the court; (5) whether close assistance of counsel was available;
(6) whether the original plea was knowing and voluntary; and (7) whether
withdrawal would waste judicial resources. United States v. Carr, 740 F.2d
339, 343-44 (5th Cir. 1984). The district court should base its decision on the
totality of circumstances. United States v. Badger, 925 F.2d 101, 104 (5th Cir.
1991). Under the totality of the circumstances, Jones has failed to show that
the district court abused its discretion. See id; McKnight, 570 F.3d at 645.
      Jones also argues that the district court erred in finding that there were
sufficient facts supporting the application of the guideline enhancements. This
argument is barred by the appeal waiver as a review of the record shows that



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    Case: 16-11371     Document: 00514576428      Page: 3    Date Filed: 07/30/2018


                                  No. 16-11371

Jones knowingly and voluntarily waived his right to appeal his sentence and
the argument does not fall into the exceptions in the appeal waiver. See United
States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). The record is not sufficiently
developed to allow consideration of Jones’s claim that he received ineffective
assistance of counsel. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014). Thus, we decline to consider it without prejudice to collateral review.
See id.
      Finally, Jones argues that the district court made an arithmetic error at
sentencing by concluding that the total aggregate sentence was 708 months
rather than 678 months. The district court’s misstatement at the sentencing
hearing was not an arithmetic error; it merely stated that it was imposing an
aggregate sentence of 324 months on Counts Three, Five, and Seven, but
subsequently misstated this as 294 months. Jones’s argument is therefore
barred by the appeal waiver because it does not fall within the arithmetic error
exception to the waiver.
      AFFIRMED.




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