### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 a n d 1 5 1

- month sentence for conspiracy to possess with the intent to distribute oxyycodone and cocaine. He also appeals his revocation of supervised release a n d 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. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Februa ry 27 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50310 Document: 00511768541 Page: 1 Date Filed: 02/27/2012No. 11-50310 c/w No. 11-50312 I n d e t ermining whether a district court has abused its discretion i n denying withdrawal o f a g uilty plea, we traditionally consider seven relevant factors. Those factors are: (1) whether the defendant asserted his innocence; (2)

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wh e th e r withdrawal would prejudice the Government ; ( 3) wh e th e r th e d e f e n d a nt delayed in filing the motion to withdraw; (4) whether withdrawal would inconvenience the court; (5) whether adequate assistance o f c o u n sel 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 gu i lty, Smith filed his motion to withdraw his plea, making his intentions known to the district court the day he

was scheduled to be sentenced. S mith equivocated when asserting his innocence. At his rearraignment, during which he was questioned and advised t horoughly by the magistrate judge, Smith indicated satisfaction with c o u n s e l 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 m o t i o n 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

Uni ted States v. Gr ant , 117 F.3d 778, 789 (5t h Cir. 1997) (c itin g Uni ted States v. Carr , 1 740 F.2d339 , 343–44 (5t h Cir

. 1984) ). Id. 2
See Uni ted Sta tes v. G ar ci a- Bonil la , 11 F. 3d 45, 47 ( 5th Cir. 199 3). 3 2 Case: 11-50310 Document: 00511768541 Page: 2 Date Filed: 02/27/2012No. 11-50310 c/w No. 11-50312 Last, Smith r aises 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 l e ader 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 rearraignmen t t hat 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.

Uni ted Sta tes v. Por til lo , 18 F. 3d 290, 292 ( 5th Cir. 199 4). 4 3 Case: 11-50310 Document: 00511768541 Page: 3 Date Filed: 02/27/2012