* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40153

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.

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2008

Charles R. Fulbruge III

Clerk
No. 07-40153

2

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

Governmentinitiated 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
No. 07-40153

3

charged with participation in a large drug conspiracy, involving many

co-conspirators.

With respectto 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 thatthe 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 notto 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 notidentify 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
No. 07-40153

4

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.