IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50732

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2014

Lyle W. Cayce

Clerk

 

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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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(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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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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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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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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“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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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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