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United States v. Smith, 04-30093 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-30093 Visitors: 50
Filed: May 16, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 16, 2005 Charles R. Fulbruge III No. 04-30093 Clerk Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DERRICK SMITH, also known as Derek Anthony Smith, Defendant-Appellant. - Appeal from the United States District Court for the Eastern District of Louisiana No. 02-CR-385-ALL-K - Before DAVIS, SMITH, and DENNIS, Circuit Judges. PER CURIAM:* Derrick Smith, proc
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                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          May 16, 2005

                                                                  Charles R. Fulbruge III
                                No. 04-30093                              Clerk
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

DERRICK SMITH, also known as Derek Anthony Smith,

                                           Defendant-Appellant.




                         --------------------
            Appeal from the United States District Court
                for the Eastern District of Louisiana
                          No. 02-CR-385-ALL-K
                         --------------------




Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

      Derrick Smith, proceeding pro se, appeals his guilty-plea

conviction and sentence for being a felon in possession of a fire-

arm and possession with intent to distribute more than 50 grams of




      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
                                No. 04-30093
                                     -2-

cocaine base.        Pursuant to a stipulated sentence in his plea

agreement, Smith received a sentence of 327 months of imprisonment.

         Smith alleges that his retained counsel was ineffective.

Although this court generally will not entertain claims of in-

effective assistance on direct appeal, see United States v. Bounds,

943 F.2d 541
, 544 (5th Cir. 1991), the record is sufficiently

developed to dispose of Smith’s claims.

         Smith first asserts that if counsel had informed him that the

government     was   seeking   to    enhance   his   sentence    as   a   career

offender, he would not have pleaded guilty.           As long as the defen-

dant understood the length of time he might possibly receive,

however, he was aware of the plea’s consequences. United States v.

Santa Lucia, 
991 F.2d 179
, 180 (5th Cir. 1993).          Smith was informed

during rearraignment of both the maximum possible sentence and the

stipulated sentence to which he had agreed in his plea agreement.

He was thus informed of the consequences of his plea.                 Smith has

not established that counsel provided ineffective assistance or

that, but for the alleged ineffectiveness, he would have proceeded

to trial.     See Hill v. Lockhart, 
474 U.S. 52
, 59 (1985).            His plea

is valid.

         Smith asserts that counsel was ineffective for failing (1) to

inform him that the government was seeking to enhance his sentence

as   a    career   offender,   (2)    to   investigate   or     challenge    the

enhancement, (3) to review the PSR with him, and (4) to present his
                                      No. 04-30093
                                           -3-

objections.     Smith also argues that the district court erroneously

found that he was subject to the career offender enhancement.

      Smith may not raise these claims, because his plea agreement

generally waived the right to appeal his sentence.                         A defendant

must know that he had “a right to appeal his sentence and that he

was giving up that right.”            United States v. Portillo, 
18 F.3d 290
,

292   (5th    Cir.     1994)    (internal     quotation       marks   and     citation

omitted).     Because the district court plainly explained the waiver

provision at rearraignment and Smith stated he understood it, the

waiver provision is valid and bars our consideration of these

issues.      Even if the waiver did not apply, however, Smith cannot

demonstrate     any     prejudice        resulting     from     counsel’s      alleged

deficiencies, because he received the sentence to which he had

stipulated.

      Finally, Smith argues that counsel was ineffective for failing

to inform him of the 10-day period for filing a notice of appeal

and   for    failing    to     move    to   withdraw   pursuant       to    Anders   v.

California, 
386 U.S. 738
(1967). Assuming that counsel did fail to

inform Smith of the time limits, Smith was not prejudiced, because

he filed a timely pro se notice of appeal.                    In addition, Smith’s

retained counsel was not required to comply with Anders in order to

withdraw.

      Smith’s motion for leave to file a supplemental brief is

DENIED.

      AFFIRMED.

Source:  CourtListener

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