     Case: 18-60159   Document: 00515298143        Page: 1   Date Filed: 02/04/2020




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

                                                                      FILED
                                                                  February 4, 2020
                                    No. 18-60159
                                                                   Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

DARRYL LOVETT WILLIAMS, also known as Big Blood,

             Defendant - Appellant




                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Darryl Lovett Williams was convicted of one count of possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §
841(a)(1). The district court sentenced to serve 240 months in prison and a
three-year term of supervised release. Williams challenges his sentence on
three grounds.
      First, Williams contends that the Government breached his plea
supplement by using uncorroborated information, which Williams had
previously given an FBI agent following his 2016 state arrest, to calculate his
    Case: 18-60159      Document: 00515298143        Page: 2    Date Filed: 02/04/2020



                                    No. 18-60159
sentence.1 Because this claim was not raised in the district court, it is reviewed
for plain error. United States v. Casillas, 853 F.3d 215, 217 (5th Cir. 2017). To
meet this standard, Williams must show a clear or obvious error that has not
been intentionally abandoned and has affected his substantial rights. Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). If he makes that
showing, then this court may exercise its discretion to correct the error,
provided that it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. at 1905.
      This court analyzes a breach claim under general contract principles and
strictly construes the terms of the agreement against the Government as the
drafter. Casillas, 853 F.3d at 217. The plain language of the agreement, taken
with the intent of the parties at the time the agreement was executed, controls.
United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005) (per curiam).
Williams’ plea supplement states that the Government may not use
information “given by Defendant subsequent to and in response to the Plea
Agreement/Plea Supplement” against the defendant, and that “information
provided by Defendant as a result of his obligation to cooperate under the Plea
Agreement/Plea Supplement . . . from the date of the Plea Agreement/Plea
supplement forward” could not be used to calculate his Sentencing Guidelines
range (emphasis added). The plea agreement was executed on November 21,
2017. Williams contests the Government’s use of statements made during an
interview with an FBI task force agent conducted at the Gautier, Mississippi
Police Department in July 2016. This interview took place after a separate
state arrest that occurred nearly a year before Williams’ federal arrest. The



      1       Williams’ plea agreement included a waiver of appeal rights, but we
nonetheless consider whether the Government breached the plea agreement because a
breach by the Government would release him from the waiver. See United States v. Purser,
747 F.3d 284, 289 & n.11 (5th Cir. 2014).
                                           2
    Case: 18-60159    Document: 00515298143     Page: 3   Date Filed: 02/04/2020



                                 No. 18-60159
plain language of Williams’ agreement with the Government indicates that it
does not bar the use of information obtained prior to the perfection of the plea
agreement and supplement. None of the cases that Williams cites addresses a
situation in which a court found the Government breached a plea agreement
by using information obtained before any terms were reached. Seeing no
ambiguity in the plain language of the agreement, nor any indication that the
parties intended the agreement to have a meaning other than that which is
ordinary and natural, we conclude that Williams has not shown a breach of his
plea agreement. See Cortez, 413 F.3d at 503.
      Williams has also failed to point to anything in the record showing that
the parties made an ancillary agreement limiting the Government’s ability to
use the information he provided. Williams argues that he gave information
during the July 2016 interview with the expectation that he would become a
cooperator or be treated leniently, making that information subject to use
immunity. Williams’ mere hope that the Government would enter into a
cooperation agreement with him based on the information he provided during
the July 2016 interview does not constitute an enforceable agreement that
binds the Government. The plea agreement and supplement are the only
agreements between the parties contained in the record.
      Williams argues that the language in the plea supplement should be read
to exclude the Government’s use of information after the plea agreement is
executed, even if that information was obtained before its execution. This is
not a reasonable interpretation of the plea supplement’s language, which limits
only the use of information provided by the defendant “as a result of his
obligation to cooperate under the Plea Agreement/Plea Supplement.”
Information given before the existence of any agreement between Williams and
the Government could not have been given as a result of the agreement.


                                       3
    Case: 18-60159      Document: 00515298143       Page: 4    Date Filed: 02/04/2020



                                    No. 18-60159
Williams has therefore failed to show that the Government breached the plea
agreement.
      Williams’ second claim on appeal is that the district court erred in
applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(5), upon finding
that Williams’ methamphetamine, based on its purity and quantity, was
imported. Because we hold that the government did not breach the plea
agreement, its provisions, including Williams’ waiver of appeal rights, are
valid and enforceable as long as Williams agreed to the waiver knowingly and
voluntarily. United States v. Keele, 755 F.3d 752, 754, 757 (5th Cir. 2014). The
record demonstrates that he did. Williams stated when he entered his guilty
plea that he had reviewed the plea agreement with his lawyer and understood
its provisions. The district court asked Williams explicitly whether he was
aware of the waiver, emphasizing that the rights he was giving up were “very
important rights,” and that he “should not give them up unless [he] ha[d] given
it very careful consideration and talked it over with [his] lawyer.” Williams
responded that he had discussed the waiver with his attorney and he agreed
to waive his rights. Williams’ trial counsel also affirmed Williams was waiving
his rights knowingly and voluntarily. Because the record shows that Williams
knowingly and voluntarily waived his appellate rights, and because the waiver
covers his claim of error as to the court’s U.S.S.G. § 2D1.1(b)(5) adjustment,2
we decline to consider this claim, and we dismiss the appeal with respect to
this claim. See United States v. Story, 439 F.3d 226, 230 n.5 (5th Cir. 2006)




      2       Williams agreed to waive the right “to appeal the conviction and sentence
imposed in this case, or the manner in which that sentence was imposed.”
                                          4
     Case: 18-60159        Document: 00515298143          Page: 5     Date Filed: 02/04/2020



                                        No. 18-60159
(“[A] defendant’s waiver of appeal may entitle the government to dismissal on
contractual grounds.”).
       Finally, Williams argues that his counsel was ineffective. Although
Williams’ appeal waiver expressly reserves his right to bring ineffective
assistance of counsel claims, we decline to consider such claims on direct
appeal because they were not presented to the district court. See United States
v. Velasquez, 881 F.3d 314, 341 (5th Cir. 2018) (per curiam) (“[C]laims of
ineffective assistance of counsel should not be litigated on direct appeal, unless
they were previously presented to the trial court.” (quoting United States v.
Isgar, 739 F.3d 829, 841 (5th Cir. 2014))). We therefore dismiss this claim
without prejudice to collateral review. See id. at 342.
       We hold that the Government did not breach Williams’ plea agreement.
Accordingly, we AFFIRM the sentence imposed by the district court and
DISMISS Williams’ remaining claims on appeal.3




       3        Although the district court did not rule on Williams’ breach claim because he
failed to raise it, by rejecting this claim we affirm the validity of the plea agreement and thus
the sentence imposed pursuant to it. See, e.g., United States v. Lavergne, 785 F. App’x 213,
215 n.1 (5th Cir. 2019) (unpublished).
                                               5
