     Case: 13-50732      Document: 00512767125         Page: 1    Date Filed: 09/12/2014




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

                                                                                    FILED
                                      No. 13-50732                         September 12, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff – Appellee,
v.

DEANGELO PERRY SMITH, A.K.A. “D-LO”,

                                                 Defendant – Appellant.




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-2420


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Deangelo Perry Smith appeals his guilty plea conviction and 168-month
sentence for conspiracy to violate forced labor and sex trafficking laws. His
appeal focuses on three issues: the adequacy of the superseding indictment,
the validity of his guilty plea, and whether the government breached the plea
agreement which would allow him to avoid his agreement to waive any
appeal of his sentence. For the following reasons, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-50732
                                       I.
      On November 9, 2011, a federal grand jury in El Paso returned a
superseding indictment charging Smith and his codefendants with fourteen
counts related to forced labor, sex trafficking, and conspiracy to commit the
same. Smith entered into a plea agreement with the government. Smith
pleaded guilty to Count One, a conspiracy count, pursuant to a plea
agreement in which he “voluntarily and knowingly waive[d] any right to
appeal the sentence on any ground.”
      At Smith’s sentencing hearing, the district court granted an obstruction
of justice enhancement at the government’s request.           It also, however,
granted the government’s request for a three-level reduction for substantial
assistance because of “Smith’s assistance in getting ‘six guns off the street.’”
Smith did not receive a reduction for acceptance of responsibility.          The
district court calculated a total offense level of 40, Criminal History Category
II, resulting in a recommending range from 324 to 405 months. The district
court considered this advisory range excessive and exercised its Booker
discretion in sentencing Smith to 168 months, close to a 50% reduction from
the low end of the recommended Guideline sentence
                                       II.
      Smith first argues that the superseding indictment was deficient
because—although it recited all of the elements of the charged conspiracies—
it failed to cite one of the subsections of the United States Code he was
charged with violating.    Count One to which Smith pleaded guilty was a
conspiracy charge under 18 U.S.C. § 1594.         The superseding indictment
alleged the following four objects of that conspiracy, with proper citation to
the statutes setting for those substantive offenses: 1) forced labor (18 U.S.C. §
1589(a)); 2) forced labor for financial gain (18 U.S.C. § 1589(b)); 3) sex
trafficking (18 U.S.C. § 1591(a)(1)); and 4) sex trafficking for financial gain
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                                      No. 13-50732
(18 U.S.C. § 1591(a)(2)). The error Smith raises for the first time on appeal is
that the two forced labor objects are included in subsection (b) of the
conspiracy statute, but the indictment only cited 18 U.S.C. § 1594(c), which
covers the sex trafficking objects.
       The Court need not resolve this issue if Smith’s guilty plea was valid
because a valid plea waives any challenge to nonjurisdictional defects. See
United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008).
“[D]efects in an indictment do not deprive a court of its power to adjudicate a
case.” United States v. Cotton, 535 U.S. 625, 630 (2002); United States v.
Cothran, 302 F.3d 279, 283 (5th Cir. 2002) (“Cotton demonstrates that
standard waiver principles apply to defects in the indictment.”).                      The
indictment’s alleged defect thus was not jurisdictional and any challenge to it
is waived, if Smith entered a knowing and voluntary plea. 1
       Smith tries to undo his guilty plea, asserting that it was invalid
because he was not properly admonished about the nature of the charges
against him and the maximum possible sentence he was facing. The record
belies his claim that he was not informed of the nature of the charges against
him.       With respect to the issue he identifies concerning his sentencing
exposure, it does not appear that any error occurred, and even if it did, it is
difficult to see how that error would have improperly influenced him to plead
guilty.



       1  Even if we could consider the argument, it would not help Smith. “Practical rather
than technical considerations govern resolution of [indictment] challenges and we will not
reverse for minor deficiencies which do not prejudice the accused.” United States v. Steen,
55 F.3d 1022, 1027 (5th Cir. 1995) (citation omitted). “An indictment need only charge the
essential elements of the offense, permitting the accused to prepare a defense.” United
States v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993). Smith’s indictment met all of these
requirements by reciting the elements of the charged conspiracy offense and its object
offenses.

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                                No. 13-50732
      The error Smith alleges relates again to the different forced labor and
sex trafficking objects of the single conspiracy count to which he pleaded
guilty. The magistrate admonished Smith that he faced a sentence up to life,
which is true for a conspiracy to engage in sex trafficking. See 18 U.S.C. §
1594(c) (incorporating sentence for violation of 18 U.S.C. § 1591).           A
conspiracy to engage in forced labor violations, however, only provides for a
sentence up to twenty years. See 18 U.S.C. § 1594(b) (incorporating sentence
for violation of 18 U.S.C. § 1589).   But because Smith was pleading to a
single-count, multi-object conspiracy in which one of the objects provided for
a sentence up to life, the magistrate was correct that a life sentence was
possible. Even if the court’s admonishment was somehow in error, Smith
does not demonstrate how being informed about a lower possible sentence for
the forced labor object would have led him not to plead guilty. Given the
specificity of the plea agreement and the superseding indictment, the lengthy
factual basis supporting his guilty plea, and Smith’s testimony that he
understood the charges against him and the consequences of pleading guilty,
Smith cannot demonstrate that but for any Rule 11 errors he would likely not
have pleaded guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004); United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009).
Accordingly, his guilty plea was valid and his allegation of the indictment
defect is waived.
      Similarly, Smith’s waiver of the right to appeal his sentence is valid
because the record reveals that Smith read and understood the terms of the
plea agreement and did not ask any questions, ask for clarification, or
express any confusion concerning the waiver provision. An appellate waiver
bars appeal if the waiver (1) was knowing and voluntary and (2) applies to
the circumstances at hand, based on the plain language of the agreement.
United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014) (citation omitted),
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                                      No. 13-50732
cert. denied, 134 S. Ct. 2319 (2014). “For a waiver of appeal to be knowing
and voluntary, a defendant must know that he had a right to appeal his
sentence, that he was giving up that right, and the consequences of giving it
up.” Id. at 736. We will “enforce a waiver on appeal regardless of whether
the district court addressed it directly where the record indicates the
defendant has read and understood his plea agreement and has raised no
questions about the waiver.” Id. at 736–37.
       At Smith’s plea colloquy, the court did discuss “the very, very important
part of [his] agreement in which [he] waive[d] [his] right to appeal the
sentence.” Smith acknowledged he was understanding that right to appeal
the sentence. That written waiver provided no exceptions allowing direct
appeal of the sentence. For a collateral attack on the sentence, however, the
written waiver provided two exceptions: Smith could challenge his sentence if
it was the “result of a violation of his constitutional rights based on claims of
ineffective assistance of counsel or prosecutorial misconduct of constitutional
dimension.” Smith contends that the magistrate judge orally expanded the
scope of the exceptions to Smith’s waiver by indicating these exceptions
applied to a direct appeal and—in what is likely the product of an improper
comma in the transcript—indicating there were three exceptions: “unless
your constitutional rights were violated, because your lawyer was ineffective,
or there was misconduct on the part of the prosecution.” Even assuming that
the magistrate judge orally expanded the scope of the exceptions to Smith’s
waiver to allow him to raise any constitutional sentencing issue on direct
appeal, his appeal does not include any such arguments. 2 Cf. United States v.



       2 Smith additionally argues that because the district court did not explicitly accept
his plea agreement, it is rendered null. But the actions of the magistrate and district judge
indicate an implicit acceptance of the agreement, something we have previously held to be
sufficient. See, e.g., United States v. Morales-Sosa, 191 F.3d 586 (5th Cir. 1999) (holding
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                                   No. 13-50732
Saferstein, 673 F.3d 237, 242–43 (3d Cir. 2012) (giving effect to the district
court’s inadvertent expansion of the exceptions to the appellate waiver but
holding that a challenge to the Guidelines calculation did not qualify as a
constitutional claim within the scope of the expanded exception). The written
waiver therefore is valid with respect to the Guidelines-focused issues he
tries to raise.
      Smith’s final argument is that even if he knowingly and voluntarily
agreed to waive a sentencing appeal in the plea agreement, he is no longer
bound by that waiver because the government breached the plea agreement
at his sentencing. United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.
2002) (explaining that when the government breaches a plea agreement, “the
defendant is necessarily released from an appeal waiver provision contained
therein”). In the plea agreement, the government agreed not to oppose a
reduction for acceptance of responsibility. Smith contends that in seeking an
obstruction-of-justice enhancement at sentencing, the government violated
that agreement because an obstruction finding ordinarily “indicates that the
defendant has not accepted responsibility for his criminal conduct.” U.S.S.G.
§ 3E1.1(b) cmt. n.4. The government sought the obstruction enhancement
based on conversations of Smith and his codefendants agreeing to commit
perjury. The government’s sentencing objection raising the obstruction issue
stated that “the events surrounding the obstruction enhancement occurred
after the plea agreement was signed and filed” and therefore the government
“defers to the Court on whether to grant acceptance of responsibility.”




that although the district court did not expressly accept the defendant’s guilty plea,
defendant’s substantial rights were not violated because the district court implicitly
accepted the guilty plea and plea agreement).

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                                 No. 13-50732
      “In determining whether a plea agreement has been breached, [this
Court] inquire[s] whether the government’s conduct is consistent with the
defendant's reasonable understanding of the agreement.” United States v.
Reeves, 255 F.3d 208, 210 (5th Cir. 2001) (citations and internal quotation
marks omitted). Smith must also “show a reasonable probability that, but for
the district court’s error, [he] would have received a lower sentence.” United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). Even if he can meet this
standard, Smith faces additional hurdles here because did not raise this
alleged breach at the sentencing hearing. Accordingly, we review only for
plain error in which we have the discretion to correct obvious errors only if
they affected the defendant’s substantial rights and undermined the fairness,
integrity, or public reputation of judicial proceedings. See United States v.
Aguirre, 456 Fed. Appx. 459, 461 (5th Cir. Jan. 4, 2012) (applying the plain
error standard to similar claim that government breached the plea
agreement).
      In recently addressing a similar situation in which the government
sought an obstruction enhancement when it had agreed not to oppose
acceptance, we did not determine whether an obvious error occurred. See id.
at 462. Instead, we found that the defendant could not show an effect on his
substantial rights because the plea agreement— like the one in Smith’s
case—expressly allowed the government to inform the district court of the
defendant’s conduct. Because that conduct the government was permitted to
disclose supported an obstruction enhancement and denial of acceptance, we
concluded that the defendant could not show that any error affected his
substantial rights or “the fairness, integrity, or public reputation of judicial
proceedings.”   Id. (citing Puckett v. United States, 556 U.S. 129, 135–41
(2009)).


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                                No. 13-50732
      We follow the same analysis in this case, which has the added fact that
the district court sentenced Smith well below the calculated guidelines range,
or even what the range would have been with an acceptance reduction.
Because Smith cannot succeed on his claim for a breached plea agreement
under the plain error standard, he remains bound by his appellate waiver
and we do not consider the sentencing issues he raises. See United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
                                     III.
      For these reasons, the district court’s judgment is AFFIRMED.




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