     Case: 18-41158      Document: 00515229852         Page: 1    Date Filed: 12/10/2019




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

                                    No. 18-41158
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    December 10, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

DARNELL DWIGHT SMITH, also known as Slick Rick,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:17-CR-25-4


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Darnell Dwight Smith pleaded guilty to
conspiracy to distribute and possess with intent to distribute cocaine,
methamphetamine, cocaine base, and marijuana. He also waived his right to
challenge his conviction and sentence, except that he reserved the right to seek
review of a sentence in excess of the statutory maximum and of claims of
ineffective assistance of counsel. On appeal, Smith argues that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-41158     Document: 00515229852     Page: 2   Date Filed: 12/10/2019


                                  No. 18-41158

court erred by (1) refusing to allow him to withdraw his guilty plea and
(2) imposing special conditions of supervised release in the written judgment
that were not pronounced at sentencing.
      We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). Seven
factors are considered: (1) whether the defendant asserted innocence;
(2) whether withdrawal of the plea would prejudice the Government;
(3) whether the defendant delayed in filing his withdrawal motion; (4) whether
granting withdrawal would substantially inconvenience the court; (5) whether
close assistance of counsel was available to the defendant; (6) whether the plea
was knowing and voluntary; and (7) whether granting withdrawal would waste
judicial resources. Id. at 343-44. The district court found that each of these
factors weighed against Smith, and he has identified no error in the court’s
reasons for doing so. We accordingly find no abuse of discretion. See id. at 344.
That Smith disagrees with the Carr framework does not alter this result,
although we note that our affirmance is without prejudice to his right to raise
a claim of ineffective assistance of counsel in a subsequent collateral
proceeding. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
      With respect to Smith’s second claim, the Government has invoked his
appeal waiver.    This court enforces appeal waivers that are knowing and
voluntary and that, by their plain language, apply to the circumstances at
hand. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Upon review
of the record and the plea agreement, we conclude that both conditions are met
here. See United States v. Higgins, 739 F.3d 733, 737 (5th Cir. 2014) (holding
that a challenge alleging that a written judgment conflicts with the trial court’s
oral sentencing pronouncement is encompassed by a sentence appeal waiver).
      AFFIRMED in part, DISMISSED in part.



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