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

                                                                            FILED
                                                                            July 26, 2013

                                       No. 12-30401                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JAMAL MARTIN WALTON, also known as Meatball Walton,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-157-4


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Jamal Walton pleaded guilty in federal district court
to conspiracy to use a firearm in relation to a crime of violence and carjacking
resulting in death. Walton entered into a plea agreement waiving his right to
a direct appeal on any grounds other than that his sentence exceeded the
statutory maximum.          The district court accepted the plea agreement and
thereafter sentenced Walton to 480 months imprisonment. Walton appeals the
district court’s decisions to deny requests submitted prior to sentencing to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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withdraw the guilty plea and for withdrawal of counsel; argues that the length
of his sentence violates the Eighth Amendment; and contends that the district
court erred in several respects in applying the sentencing factors set forth in 18
U.S.C. § 3553(a) and the provisions of the U.S. Sentencing Guidelines. The
government invokes Walton’s appeal waiver as to all of his arguments save those
regarding the requests to withdraw the guilty plea and to substitute counsel.
Walton argues in response that the appeal waiver is invalid because not
knowingly entered, or that it at least cannot bar his Eighth Amendment claims.
      We conclude that the district court did not abuse its discretion in denying
Walton’s requests to withdraw his guilty plea and to substitute counsel. We
further conclude that, assuming arguendo that Walton’s appeal waiver does not
bar his Eighth Amendment challenges to the length of his sentence, those
unpreserved claims fail under plain error review. Finally, we conclude that the
valid appeal waiver bars Walton’s remaining challenges to his sentence. We
therefore affirm Walton’s sentence.
                                        I
      In June 2004, Walton was arrested in connection with a carjacking and
murder in New Orleans. Walton, then a seventeen-year old juvenile, was driving
a car accompanied by Darnel Dorsey, Adrian McDaniel, and Adrian Alexis when
he noticed a late model truck being driven by Nathaniel Robertson. Walton
suggested to his passengers that they carjack Robertson’s truck. Walton then
drove to the home of Charles Raymond, where Walton told Raymond about the
truck and asked him to bring his gun. Raymond got into the car with an assault
rifle. Walton drove in pursuit of the truck and followed it to Robertson’s home,
where Raymond shot and killed Robertson. Dorsey drove away in Robertson’s


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truck, and Walton drove Raymond, McDaniel, and Alexis to Alexis’s house,
where McDaniel took Raymond’s rifle into Alexis’s yard to hide it.
      As stated by the district court, “Walton has a history of developmental
issues, particularly in the areas of speech, communication, language, and mental
health.” Following his arrest, Walton was found incompetent to proceed by the
Orleans Parish Criminal District Court. He then was remanded to the Feliciana
Forensic Facility for competency restoration. After three months, Walton’s
competency was deemed restored and thereafter he entered a guilty plea to a
reduced charge of simple robbery.
      However, on May 29, 2009, Walton was indicted by a federal grand jury
on seven counts stemming from the same carjacking and murder. On July 2,
2010, the district court ordered that Dr. John W. Thompson conduct an
evaluation of Walton’s competency. On July 23, 2010, Dr. Thompson evaluated
Walton and concluded that he could relate to his attorney with a reasonable
degree of rational understanding, had a rational understanding of the
proceedings against him, and did not have a mental disease or defect that would
impair his ability to understand the proceedings or to assist in his defense. The
district court held a competency hearing on August 13, 2010, during which Dr.
Thompson testified and presented his evaluation. The court found Walton
competent to proceed.
      On September 29, 2011, Walton pleaded guilty to conspiracy to use a
firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(o), and
carjacking resulting in the death of another person, in violation of 18 U.S.C.
§ 2119(3). The government agreed to dismiss the remaining five counts. The
plea agreement contained an appeal waiver provision providing, inter alia, that


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Walton waived any direct appeal other than “a direct appeal of any sentence
imposed in excess of the statutory maximum.” The district court carefully
explained the terms of the plea agreement, including the appeal waiver, and
confirmed that Walton understood the agreement. The district court thereafter
accepted Walton’s guilty plea.
      On December 7, 2011, after learning that the presentence report indicated
a guidelines sentence of life imprisonment, Walton filed a motion to withdraw
his guilty plea.     In the motion, Walton asserted that his attorney had
represented to him that the government would recommend a twenty-five-year
sentence and that his plea was not knowingly entered. The district court held
a hearing on the issue and denied Walton’s motion.
      On March 29, 2012, defense counsel filed a request to withdraw, citing a
purported conflict based on a letter Walton had directed to the district court
asserting ineffective assistance of counsel in connection with the plea agreement.
The district court again held a hearing, at which Walton indicated that he
wanted to proceed with his current counsel, who likewise indicated that she was
ready and willing to represent Walton at sentencing. The district court denied
the motion. At sentencing, the district court exercised its discretion to vary
downward from the sentencing guidelines range of life and instead sentenced
Walton to 480 months imprisonment, explaining that Walton was less culpable
for Robertson’s death than the shooter, Raymond, and also noting Walton’s
comparatively young age at the time of the crime. Walton timely appealed.
                                        II
      The government does not seek to apply the appeal waiver as a bar to
Walton’s arguments that the district court abused its discretion in denying his


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motion to withdraw his guilty plea and counsel’s request to withdraw. We
conclude that the district court did not abuse its discretion with respect to either
request.
                                         A
      “[I]t is well settled that there is no absolute right to withdraw a guilty plea
before the imposition of sentence. The standard for determining whether or not
a defendant may withdraw his guilty plea prior to sentencing is whether for any
reason the granting of the privilege seems fair and just.” United States v. Minor,
714 F.3d 319, 321 (5th Cir. 2013) (citation omitted) (quoting United States v.
Carr, 740 F.2d 339 (5th Cir. 1984)). “This Court reviews a district court’s
decision to deny a motion to withdraw a guilty plea for abuse of discretion.”
United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). “In deciding
whether the district court should have permitted [the defendant] to withdraw his
guilty plea, this Court must consider seven factors: (1) whether [the defendant]
asserted his innocence; (2) whether the Government would suffer prejudice if the
withdrawal motion was granted; (3) whether [the defendant] delayed in filing his
withdrawal motion; (4) whether the withdrawal would substantially
inconvenience the court; (5) whether close assistance of counsel was available to
[the defendant]; (6) whether the original plea was knowing and voluntary; and
(7) whether the withdrawal would waste judicial resources.” Id. at 645-46 (citing
Carr, 740 F.2d at 343-44). “The Carr factors are considered for the totality of the
circumstances, and the district court is not required to make a finding as to each
individual factor.” Id. at 646. “[T]he defendant has the burden of proving the
withdrawal is justified” and “the trial court’s decision regarding a withdrawal




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motion must be accorded ‘broad discretion.’” Carr, 740 F.2d at 344 (quoting
united States v. Morrow, 537 F.2d 120, 146 (5th Cir. 1976)).
      Walton argues that the district court abused its discretion in denying his
motion to withdraw his guilty plea because (1) he did not knowingly and
intelligently enter his plea; (2) he lacked the “close assistance of counsel” due to
“the trial court denial of trial counsel’s motion for expert funds and trial
counsel’s failure to advise [Walton] that he faced a life sentence under the
Guidelines”; (3) he did not delay in filing his motion but rather “submitted [it]
as soon as possible after receiving and evaluating [a] report from [Walton’s
mental health expert] Dr. Bauer and analyzing its impact on . . . the viability of
a motion to withdraw” the plea; and (4) withdrawing the plea would not have
caused prejudice to the government or inconvenience to the court.
      The district court denied Walton’s motion to withdraw his plea after a
hearing and issued a thoroughly-reasoned opinion and order specifically
addressing each of the Carr factors. As to whether Walton knowingly and
voluntarily pleaded guilty, the district court explained that it “held a competency
hearing on August 13, 2010 and found that Walton was competent to proceed”
and further noted that “[d]uring the rearraignment proceedings on September
29, 2011, . . . [d]efense counsel . . . had no doubt that [Walton] was competent to
enter a plea of guilty” and that “[b]ased upon the representations made by the
defendant, his counsel, and the government, th[e] Court found that Walton was
competent to plead guilty.” The transcript of the plea proceeding fully supports
the district court’s conclusion that Walton knowingly entered his plea. The
transcript indicates that, after the prosecutor had orally set forth the terms of
the plea agreement, the district court confirmed that Walton’s trial counsel


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“ha[d] read the Plea Agreement to him line-by-line.” The district court then
again went over the terms of the agreement.          Walton confirmed that he
understood the maximum sentence he faced and that he had no questions
regarding the guilty plea. He further indicated that he had not received any
predictions or promises as to the sentence the district court would impose.
Accordingly, the voluntariness factor does not indicate that the district court
abused its discretion in denying Walton’s motion to withdraw his plea.
      With respect to timeliness, “[t]he longer a defendant delays in filing a
withdrawal motion, the more substantial reasons he must proffer in support of
his motion.” Carr, 740 F.2d at 344. The Carr court explained that “[t]he
rationale for allowing a defendant to withdraw a guilty plea is to permit him to
undo a plea that was unknowingly made at the time it was entered. The purpose
is not to allow a defendant to make a tactical decision to enter a plea, wait
several weeks, and then obtain a withdrawal if he believes that he made a bad
choice in pleading guilty.” Id. at 345; cf. id. at 344 (“Conversely, a prompt
withdrawal may indicate that a plea was unknowingly entered in haste.”). In
Carr, we held that the defendant’s withdrawal “motion was not promptly filed”
where “[t]he defendant waited twenty-two days before filing his motion for
withdrawal of his guilty plea — only three days before sentencing.” Id. at 345.
Here, the district court acknowledged Walton’s argument that counsel needed
to evaluate Dr. Bauer’s report before filing the motion, but noted that “[a]t the
rearraignment, just a few days [after the plea colloquy], the Court directly asked
counsel, in open court, whether or not she had any difficulty communicating with
Walton and/or had any doubts about his competency to plead guilty” and that
counsel answered that she did not. The district court also noted that even “after


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obtaining Dr. Bauer’s report, Walton waited another nineteen days — until what
was virtually the last minute before sentencing — to file [the] motion.” The
delay after counsel received Dr. Bauer’s report was nearly as long as the
unacceptable delay after entry of the plea in Carr. See Carr, 740 F.2d at 345.
Thus, this factor too weighs against reversal.
        Finally, Walton has not demonstrated an abuse of discretion based on his
assertions that granting the motion to withdraw his plea would not have
prejudiced the government or inconvenienced the district court. The district
court found that “[a]llowing Walton to withdraw his plea . . . would [have]
substantially inconvenience[d] th[e] [c]ourt and waste[d] judicial resources as it
would [have] require[d] an additional trial when Walton could have been tried
together with Raymond more than five months [earlier].” It is well settled that
“[t]he district court’s assessment of this factor is entitled to substantial deference
since it is in the best position to know the effect that the withdrawal had on its
resources.” Carr, 740 F.2d at 345; see also id. (“[W]e do not believe that the
absence of a showing of prejudice to the government, by itself, should be
sufficient to mandate permission to withdraw a plea when, as here, no credible
reason is proffered.”).
        Accordingly, we conclude that Walton has failed to demonstrate that the
district court abused its discretion in denying his motion to withdraw his guilty
plea.
                                          B
        We likewise discern no abuse of discretion with respect to counsel’s initial
request to withdraw, made in response to Walton’s assertions to the district
court that counsel had rendered ineffective assistance in connection with the


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entry of his guilty plea. “Although an indigent criminal defendant has a right
to be represented by counsel, he does not have a right to be represented by a
particular lawyer, or to demand a different appointed lawyer except for good
cause.” United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). “Unless a
Sixth Amendment violation is shown, whether to appoint a different lawyer for
an indigent criminal defendant who expresses dissatisfaction with his
court-appointed counsel is a matter committed to the sound discretion of the
district court.” Id.; accord United States v. Simpson, 645 F.3d 300, 307 (5th Cir.
2011).
      The district court denied counsel’s request only after Walton confirmed
that, despite his previous assertions, he wanted to “stick with” his trial counsel
and “want[ed] her to continue to represent [him].” The district court also
confirmed with defense counsel that she “absolutely believe[d]” she could
effectively represent Walton at sentencing. Walton has not demonstrated on the
current record the existence of a Sixth Amendment violation regarding trial
counsel’s supposed representations to him during plea negotiations.           See
Simpson, 645 F.3d at 307. Nor has Walton otherwise demonstrated that the
district court abused its discretion.
                                        III
      Walton also raises several challenges to the 480-month sentence imposed
by the district court. Principally, Walton argues that his sentence violates the
Eighth Amendment under the Supreme Court’s decision in Graham v. Florida,
130 S. Ct. 2011 (2010), which prohibits imposition of life without parole on
juveniles for crimes other than homicide, or under Miller v. Alabama, 132 S. Ct.
2455 (2012), which prohibits the application of mandatory life-without-parole


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sentencing schemes to juvenile offenders. As an initial matter, and in contrast
to the foregoing issues concerning Walton’s and his attorney’s pre-sentence
requests, the government does seek to enforce the appeal waiver provision of
Walton’s guilty plea agreement as to Walton’s challenges to his sentence.
                                        A
      Walton first contends that the appeal waiver is unenforceable because it
was not knowingly entered. “To determine whether an appeal of a sentence is
barred by an appeal waiver provision in a plea agreement, we conduct a two-step
inquiry: (1) whether the waiver was knowing and voluntary and (2) whether the
waiver applies to the circumstances at hand, based on the plain language of the
agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). “If the
district court accurately explains the terms and consequences of the waiver of
appeal and the defendant states on the record that he understands them, the
defendant’s later contention that he did not really understand will not invalidate
the waiver.” United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). Here,
the transcript of the plea hearing demonstrates that the district court carefully
and accurately reviewed the terms of the plea agreement with Walton,
specifically including the appeal waiver, and that Walton acknowledged that he
understood the waiver without raising any question as to its meaning.
Accordingly, Walton has failed to demonstrate that the appeal waiver was not
knowingly entered. See id.
                                      B
      Alternatively, Walton argues that even an otherwise valid and applicable
appeal waiver may not be enforced to prevent a prisoner from challenging the




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length of his sentence as exceeding statutory or constitutional limitations.1 In
support, Walton cites a previous panel’s statement that a defendant’s waiver of
the right to bring a federal post-conviction petition “does not preclude review of
a sentence that exceeds the statutory maximum.” United States v. Hollins, 97
F. App’x 477, 479 (5th Cir. 2004) (per curiam) (unpublished). Walton also points
to statements in opinions from other circuits to the effect that “a waiver of the
right to appeal one’s sentence . . . would [not] prevent a challenge . . . to an
‘illegal sentence,’ such as a sentence imposed in excess of the maximum penalty
provided by statute or based upon a constitutionally impermissible factor such
as race.” United States v. Michelsen, 141 F.3d 867, 872 n.3 (8th Cir. 1998).
       Whether an appeal waiver may bar a prisoner from arguing on direct
appeal that the length of his sentence exceeds Eighth Amendment limitations
appears to be an open question in this circuit, and we need not consider the
merits of that question here. Assuming arguendo that the appeal waiver does
not bar us from considering Walton’s Eighth Amendment arguments, those
arguments, unpreserved before the sentencing court, fail under plain error
review. See, e.g., United States v. Harris, 434 F.3d 767, 774 (5th Cir. 2005)
(assuming that unpreserved claim “survive[d] [defendant’s] waiver of appeal”
and concluding that the claim “ha[d] no merit” under plain error review); see also
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013) (“[A] constitutional
right, or a right of any other sort, may be forfeited in criminal as well as civil



       1
         Ordinarily, the death penalty is the maximum sentence for a conviction of carjacking
resulting in death. 18 U.S.C. § 2119(3). However, the Supreme Court’s decision Roper v.
Simmons, 543 U.S. 551 (2005), prohibits capital sentences for conduct committed by juveniles.
Thus, life imprisonment was the maximum sentence that lawfully could be imposed in this
case.

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cases by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” (internal quotation marks omitted)).
      Walton argues that his forty-year sentence violates the Eighth
Amendment under the Supreme Court’s decisions in Graham and Miller.
“Under plain-error review, [the appellant] must show: (1) an error, (2) that is
plain, (3) and that affected his substantial rights.” United States v. Garcia-
Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013). “After this showing, we will exercise
discretion to correct the error only if the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. (alteration in original)
(internal quotation marks omitted). “Under the second prong of plain-error
review, [the appellant] must show a legal error that is ‘clear or obvious, rather
than subject to reasonable dispute.’” Id. at 318. Where an appellant’s argument
raises “an issue of first impression” or “require[s] an extension of precedent,” this
court will “conclude that any error was not plain or obvious.” Id.
      In Graham, the Supreme Court held that “[t]he Constitution prohibits the
imposition of a life without parole sentence on a juvenile offender who did not
commit homicide.” 130 S. Ct. at 2034. Miller, meanwhile, “hold[s] that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders.” 132 S. Ct. at 2469. Neither
holding applies to Walton’s discretionary federal sentence for a term of years.
Because Walton attempts to raise novel constitutional arguments that would
require the extension of precedent, he fails to demonstrate plain error. See
Garcia-Gonzalez, 714 F.3d at 318.




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                                      C
      Finally, having determined that the appeal waiver was knowingly entered
and otherwise valid, we enforce the waiver as to the remainder of Walton’s
arguments regarding the district court’s sentencing guidelines calculation and
its assessment of the statutory sentencing factors.
                                      IV
      For the foregoing reasons, we AFFIRM the sentence imposed by the
district court.




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