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United States v. Gray ( 2021 )


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  • Case: 21-60142     Document: 00516129024          Page: 1    Date Filed: 12/13/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-60142                         December 13, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Artez Gray,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:19-CR-28-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
After Artez Gray pled guilty to possession with the intent to distribute
cocaine, the district court sentenced him to 90 months of imprisonment and
three years of supervised release. Gray argues that the district court should
have construed his pro se motion requesting dismissal of the presentence
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-60142      Document: 00516129024           Page: 2    Date Filed: 12/13/2021
No. 21-60142
report (PSR) as a request for withdrawal of his guilty plea and granted that
construed motion. Because Gray never asked to withdraw his guilty plea
either in his pro se motion or at the motion hearing, there was no basis for the
district court to construe that motion as a request to withdraw his guilty plea.
We usually review a district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion, but Gray’s challenge is subject to plain-
error review because he raises it for the first time on appeal. See United States
v. McKnight,
    570 F.3d 641
    , 645 (5th Cir. 2009); United States v. Rhodes,
    253 F.3d 800
    , 804 (5th Cir. 2001). Our review of the relevant factors does not
show an abuse of discretion, especially under plain-error review. See United
States v. Lampazianie,
    251 F.3d 519
    , 524 (5th Cir. 2001).
Gray also contends for the first time on appeal that the district court
should have appointed him substitute counsel before it considered his motion
for dismissal of the PSR. This challenge is also subject to plain-error review.
See Puckett v. United States,
    556 U.S. 129
    , 135 (2009). As Gray’s pro se
motion to dismiss the PSR and his motion for appointment of substitute
counsel shared the same basis, both motions were discussed at the same
hearing. Because Gray has not shown how appointment of substitute counsel
prior to consideration of his motion to dismiss the PSR would have altered
the outcome, he has not shown reversible plain error in this regard. See
    id.
    Gray’s challenge to the procedural and substantive reasonableness of
his sentence is barred by the terms of the appeal-waiver provision in his plea
agreement. Gray argues that the appeal-waiver provision should not be
enforced because the Government breached the plea agreement by breaking
a promise not to apply the career-offender enhancement. Also, he contends
his guilty plea was induced by an unkept promise by defense counsel or the
prosecutor.    The record, however, does not support either argument.
Because the record shows that his guilty plea was valid, we will enforce that
2
Case: 21-60142     Document: 00516129024           Page: 3   Date Filed: 12/13/2021
No. 21-60142
waiver provision, as requested by the Government. See United States v. Dees,
    125 F.3d 261
    , 269 (5th Cir. 1997).
The district court’s judgment is AFFIRMED. Gray’s motion on
appeal to place his brief and the record excerpts under seal is GRANTED.
3