     Case: 11-50310     Document: 00511768541         Page: 1     Date Filed: 02/27/2012




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

                                                                            FILED
                                                                         February 27, 2012
                                      No. 11-50310
                                    c/w No. 11-50312                       Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICKY OLIN SMITH,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 7:10-CR-276-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.*
PER CURIAM:
        Ricky Olin Smith appeals his conviction and 151-month sentence for
conspiracy to possess with the intent to distribute oxyycodone and cocaine. He
also appeals his revocation of supervised release and consecutive 21-month
sentence, arguing that the revocation was based solely on his guilty plea in the
conspiracy case, which he should have been permitted to withdraw. We consider
both of his appeals below.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50310         Document: 00511768541         Page: 2     Date Filed: 02/27/2012

                                         No. 11-50310
                                       c/w No. 11-50312

       In determining whether a district court has abused its discretion in
denying withdrawal of a guilty plea, we traditionally consider seven relevant
factors.1 Those factors are: (1) whether the defendant asserted his innocence; (2)
whether withdrawal would prejudice the Government; (3) whether the defendant
delayed in filing the motion to withdraw; (4) whether withdrawal would
inconvenience the court; (5) whether adequate assistance of counsel was
available; (6) whether the plea was knowing and voluntary; and (7) whether
withdrawal would waste judicial resources.2
       More than five months after pleading guilty, Smith filed his motion to
withdraw his plea, making his intentions known to the district court the day he
was scheduled to be sentenced.                Smith equivocated when asserting his
innocence. At his rearraignment, during which he was questioned and advised
thoroughly by the magistrate judge, Smith indicated satisfaction with counsel
and that he was pleading guilty knowingly and voluntarily. Further, the district
court found that allowing withdrawal of the guilty plea would inconvenience the
court and waste judicial resources. Based on the totality of the circumstances,
the above factors weigh in favor of disallowing withdrawal of Smith’s guilty plea.
The district court’s denial of Smith’s motion to withdraw his plea was not an
abuse of discretion.
       Smith also argues that the Government breached the plea agreement by
failing to move for a downward departure. However, because the Government
reserved “sole discretion” in whether to move for a downward departure, it did
not breach the agreement by refusing to do so after it concluded that Smith had
violated his side of the agreement by lying to the government.3

       1
        United States v. Grant, 117 F.3d 778, 789 (5th Cir. 1997) (citing United States v. Carr,
740 F.2d 339, 343–44 (5th Cir. 1984)).
       2
           Id.
       3
           See United States v. Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993).

                                                2
  Case: 11-50310         Document: 00511768541          Page: 3     Date Filed: 02/27/2012

                                        No. 11-50310
                                      c/w No. 11-50312

      Last, Smith raises two issues regarding the computation of his advisory
guidelines sentencing range. He argues that the district court erred in finding
that he was an organizer or leader and in determining the drug quantity for
which he was responsible. These issues are barred by the plain language of the
waiver of appeal in Smith’s plea agreement. Moreover, the waiver was knowing
and voluntary, as Smith testified at his rearraignment that he knew he had a
right to appeal and that he was giving up that right.4
      The judgments of the district court are AFFIRMED.




      4
          United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).

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