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

                                                                            FILED
                                                                          March 28, 2008

                                       No. 07-40153                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

RODOLFO DE JESUS GUZMAN

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:06-CR-710-2


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
       Rodolfo De Jesus Guzman pleaded guilty to conspiracy to possess with
intent to distribute 100 kilograms or more of marijuana. The district court
sentenced him to 220 months in prison. On appeal, Guzman argues that the
district court abused its discretion by not allowing him to withdraw his guilty
plea, that it violated his constitutional right to a public trial by closing the
courtroom during his sentencing hearing, and that counsel was ineffective for
failing to object to the closure of the courtroom. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-40153

      As an initial matter, the Government contends that the appeal waiver
Guzman signed as a part of his plea agreement bars this appeal. Guzman
responds that the appeal waiver is invalid because the Government breached or
voided the plea agreement. We pretermit this issue because we conclude that
Guzman is not entitled to relief on the merits. See United States v. Story,
439 F.3d 226, 230-31 (5th Cir. 2006) (holding that a valid appeal waiver does not
implicate this court’s jurisdiction).
      Guzman first contends that the district court abused its discretion by not
allowing him to withdraw his guilty plea. We review a district court's denial of
a motion to withdraw a guilty plea for abuse of discretion. United States v.
Powell, 354 F.3d 362, 370 (5th Cir. 2003). A defendant does not have an absolute
right to withdraw his guilty plea. Id. A district court may, in its discretion,
permit withdrawal before sentencing if the defendant can show a “fair and just
reason.” Id. When determining whether a defendant has shown a fair and just
reason, this court considers whether:       (1) the defendant has asserted his
innocence, (2) withdrawal would prejudice the Government, (3) the defendant
has delayed in filing his withdrawal motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was available, (6) the
original plea was knowing and voluntary, and (7) withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
      The Carr factors weigh against allowing Guzman to withdraw his guilty
plea. Guzman does not assert his innocence. He waited months after the
Government initiated forfeiture proceedings before moving to withdraw his plea
on that basis. In addition, Guzman does not argue that he did not have the close
assistance of counsel during his rearraignment or that counsel was ineffective
in connection with his plea. The record also indicates that conducting a trial
would have substantially inconvenienced the court because Guzman was



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charged with participation in a large drug conspiracy, involving many
co-conspirators.
      With respect to the sixth factor, Guzman argues that he did not knowingly
and voluntarily enter his guilty plea because he understood the plea agreement
to include a promise that the Government would not seek forfeiture of his assets.
Guzman argues that the Government breached this promise when it later
initiated forfeiture proceedings. "[W]hen a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, [the] promise must be fulfilled." Santobello v.
New York, 404 U.S. 257, 262 (1971). Breach of such a promise taints the
voluntariness of a guilty plea. McNeil v. Blackburn, 802 F.2d 830, 832 (5th
Cir. 1986). The Government breaches a plea agreement when its conduct is
inconsistent with the defendant’s reasonable understanding of the agreement.
See United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).
      In this case, Guzman’s interpretation of the plea agreement as creating
a promise not to seek forfeiture is unreasonable. The plea agreement states, “the
defendant further agrees to . . . not oppose the forfeiture of assets contemplated
in this agreement.” Because the agreement references “assets contemplated in
the agreement” but does not identify any assets as subject to forfeiture, Guzman
maintains that the Government impliedly promised not to seek forfeiture of any
of his assets.
      This provision defines an obligation that Guzman, not the Government,
agreed to undertake. Because the agreement did not specify any assets, Guzman
was free to contest any and all forfeitures. It does not follow, however, that the
Government impliedly promised not to seek any forfeiture whatsoever. The
Supreme Court has cautioned against implying a term upon which the parties
did not themselves agree, see United States v. Benchimol, 471 U.S. 453, 455
(1985), and this court has likewise been reluctant to read terms into plea

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agreements. See, e.g., Bickham Lincoln-Mercury Inc. v. United States, 168 F.3d
790, 794 (5th Cir. 1999).
        Moreover, Guzman’s decision to wait months after the Government
initiated forfeiture proceedings before moving to withdraw his guilty plea
indicates that his original plea did not “rest in any significant degree” on the
alleged promise not to seek forfeiture.      See Santobello, 404 U.S. at 262.
Guzman’s decision to plead guilty was knowing and voluntary. The district court
did not abuse its discretion in denying Guzman’s motion to withdraw his guilty
plea.
        Next, Guzman argues that the district court violated his constitutional
right to a public trial when it closed the courtroom during his sentencing
hearing. However, Guzman failed to object to the closure of the courtroom and
therefore waived any right he may have had to an open sentencing hearing. See
United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2007) (“Where a defendant,
with knowledge of the closure of the courtroom, fails to object, that defendant
waives his right to a public trial.”).
        Finally, Guzman contends that his counsel was ineffective for failing to
object to the closure of the courtroom. Generally, this court declines to review
claims of ineffective assistance of counsel on direct appeal. United States v.
Miller, 406 F.3d 323, 335-36 (5th Cir. 2005). This court has “undertaken to
resolve claims of inadequate representation on direct appeal only in rare cases
where the record allowed the court to evaluate fairly the merits of the claim.”
United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). Here, the record
provides no details about counsel’s conduct. Guzman’s argument that his
counsel was ineffective is therefore premature.
        For these reasons, the judgment of the district court is AFFIRMED.




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