United States v. Broyles , 71 F. App'x 328 ( 2003 )

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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                    August 4, 2003
Charles R. Fulbruge III
Clerk
No. 02-30968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NINA SUE BROYLES,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CR-35-ALL
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Nina   Sue    Broyles   appeals   her   guilty-plea   conviction     and
sentence for conspiracy to make false statements in violation of

18 U.S.C. §§ 371

 and 1001.      Broyles was charged by and plead guilty to
one count of a bill of information and was sentenced to thirty-
three months’ imprisonment and three years’ supervised release.
Broyles now asserts that the district court erred in denying
*
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opinion should not be published and is not precedent except under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.
her presentencing motion to withdraw her guilty plea, that the
appeal-waiver    provision   contained     in    the    plea   agreement    was
invalid, and that she received ineffective assistance of counsel.
Broyles’s main contention on this appeal is that her guilty
plea was not knowing and voluntary because of misrepresentations
made by the Government. Broyles’s plea agreement put her on notice
that she could receive up to five years’ imprisonment and stated
that there was no agreement between Broyles and the United States
as to the actual sentence that would be imposed by the court.
Broyles signed the agreement, which included a statement that she
fully understood the agreement. Broyles also informed the district
court at arraignment that no one had made her any promises to
entice her to plead guilty.       Unfulfilled expectations of a lighter
sentence do not constitute a fair and just reason for allowing
withdrawal of a guilty plea.         United States v. Badger,

925 F.2d 101

, 104 (5th Cir. 1991).        The remaining factors we consider under
Federal   Rule   of   Criminal    Procedure     32(e)   also   do   not   favor
withdrawal of Broyles’s guilty plea.          Considering the totality of
the circumstances, Broyles did not clearly establish a fair and
just reason for withdrawing her guilty plea.             See FED. R. CRIM. P.
32(e); United States v. Brewster,

137 F.3d 853

, 857-58 (5th Cir.
1998). We therefore conclude that the district court did not abuse
its discretion in denying Broyles’s motion to withdraw her guilty
plea.   See Brewster,

137 F.3d at 857

.
2
Broyles also raises several sentencing issues. As part of her
plea agreement, however, Broyles agreed to waive her right to
appeal her sentence except in two limited circumstances, namely, in
the case of a sentence that exceeded the statutory maximum, or in
the case of an upward departure from the applicable guidelines as
determined by the district court.        Neither of those circumstances
are present here.     The record indicates that Broyles’s waiver of
her right to appeal her sentence in her plea agreement was knowing
and voluntary and, therefore, enforceable.        See United States v.
Portillo,

18 F.3d 290

, 292 (5th Cir. 1994).
Broyles also argues that she received ineffective assistance
of counsel during the (post-plea) presentencing and the sentencing
phases of her case.      A knowing and voluntary waiver of appeal,
however, also bars claims of ineffective assistance of counsel at
sentencing.     See United States v. White,

307 F.3d 336

, 343 (5th
Cir. 2002).    Because Broyles does not directly allege (and did not
below) that any ineffective assistance of counsel affected the plea
or the plea agreement, she is barred by the provisions of her plea
agreement     from   raising,   on   direct   appeal,   any   claim   of
ineffectiveness of counsel in connection with her sentence.           See

id.

   Moreover, even if she were not so barred, Broyles’s claim of
ineffective assistance of counsel cannot be resolved on direct
appeal since it was not first raised in the district court.      United
States v. Bounds,

943 F.2d 541

, 544 (5th Cir. 1991).       The district
3
court did not make any factual findings regarding allegations of
ineffective assistance at sentencing, and analysis of these claims
would require speculation by this court as to the reasons for
counsel’s alleged acts and omissions. See United States v. Kizzee,

150 F.3d 497

, 503 (5th Cir. 1998).   Broyles’s waiver of her right
to appeal, however, did not expressly extend to waiving her right
to petition for a writ of habeas corpus or for relief under

28 U.S.C. § 2255

.   Cf. White,

307 F.3d at 337

.   We therefore decline
to reach the merits of Broyles’s ineffective assistance of counsel
claim, but do so without prejudice to whatever right, if any, she
may have (an issue we do not resolve) to present this matter to the
district court via a motion under

28 U.S.C. § 2255