IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50310

c/w No. 11-50312

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICKY OLIN SMITH,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:10-CR-276-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.*

PER CURIAM:

Ricky Olin Smith appeals his conviction and 151-month sentence for

conspiracy to possess with the intent to distribute oxyycodone and cocaine. He

also appeals his revocation of supervised release and consecutive 21-month

sentence, arguing that the revocation was based solely on his guilty plea in the

conspiracy case, which he should have been permitted to withdraw. We consider

both of his appeals below.

United States Court of Appeals

Fifth Circuit

F I L E D

February 27, 2012

Lyle W. Cayce

Clerk

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. 11-50310

c/w No. 11-50312

In determining whether a district court has abused its discretion in

denying withdrawal of a guilty plea, we traditionally consider seven relevant

factors. Those factors are: (1) whether the defendant asserted his innocence; (2) 1

whetherwithdrawal would prejudice the Government;(3) whether the defendant

delayed in filing the motion to withdraw; (4) whether withdrawal would

inconvenience the court; (5) whether adequate assistance of counsel was

available; (6) whether the plea was knowing and voluntary; and (7) whether

withdrawal would waste judicial resources. 

2

More than five months after pleading guilty, Smith filed his motion to

withdraw his plea, making his intentions known to the district court the day he

was scheduled to be sentenced. Smith equivocated when asserting his

innocence. At his rearraignment, during which he was questioned and advised

thoroughly by the magistrate judge, Smith indicated satisfaction with counsel

and that he was pleading guilty knowingly and voluntarily. Further, the district

court found that allowing withdrawal of the guilty plea would inconvenience the

court and waste judicial resources. Based on the totality of the circumstances,

the above factors weigh in favor of disallowing withdrawal of Smith’s guilty plea. 

The district court’s denial of Smith’s motion to withdraw his plea was not an

abuse of discretion. 

Smith also argues that the Government breached the plea agreement by

failing to move for a downward departure. However, because the Government

reserved “sole discretion” in whether to move for a downward departure, it did

not breach the agreement by refusing to do so after it concluded that Smith had

violated his side of the agreement by lying to the government.3

United States v. Grant, 117 F.3d 778, 789 (5th Cir. 1997) (citing United States v. Carr,

1

740 F.2d 339, 343–44 (5th Cir. 1984)).

Id. 2

See United States v. Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993). 3

2

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No. 11-50310

c/w No. 11-50312

Last, Smith raises two issues regarding the computation of his advisory

guidelines sentencing range. He argues that the district court erred in finding

that he was an organizer or leader and in determining the drug quantity for

which he was responsible. These issues are barred by the plain language of the

waiver of appeal in Smith’s plea agreement. Moreover, the waiver was knowing

and voluntary, as Smith testified at his rearraignment that he knew he had a

right to appeal and that he was giving up that right.4

The judgments of the district court are AFFIRMED.

United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). 4

3

Case: 11-50310 Document: 00511768541 Page: 3 Date Filed: 02/27/2012