United States v. Quade Smith

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2018
• Docket: 17-30018
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30018

Plaintiff-Appellee, D.C. No. 4:16-cr-00049-BMM

v. MEMORANDUM* QUADE SMITH,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Quade Smith appeals from the district court’s judgment and challenges the

121-month sentence imposed following his guilty-plea conviction for possession

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1);

assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153(a) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 113(a)(6); and discharging a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A). We have jurisdiction under 28 U.S.C.

§ 1291, and we dismiss.

The government contends that Smith’s appeal of his sentence is barred by

the appeal waiver in the parties’ plea agreement. Smith suggests that the waiver is

unenforceable because his guilty plea was not knowing and voluntary, and because

he received ineffective assistance of counsel. We review de novo whether a

defendant has waived his right to appeal. See United States v. Harris, 628 F.3d

1203, 1205 (9th Cir. 2011).

The record does not support Smith’s claim that his plea was not knowing

and voluntary. Smith was advised in the plea agreement and at his change of plea

hearing that one of the counts to which he was pleading guilty carried a mandatory

minimum sentence of 120 months. Nothing in the plea agreement indicated that

the government was required to seek a sentence below the mandatory minimum.

In fact, the agreement provided that the government could recommend a sentence

up to 150 months. To the extent Smith argues that the plea agreement led him to

believe that he would be allowed to argue for a sentence below the mandatory

minimum, the record reflects that he was given that opportunity. We decline to

reach on direct appeal Smith’s contention that his guilty plea resulted from

ineffective assistance of counsel. See United States v. Rahman, 642 F.3d 1257,

2 17-30018 1259-60 (9th Cir. 2011).

Because the record shows that Smith’s guilty plea was knowing and

voluntary, and the appeal waiver encompasses Smith’s challenge to his sentence,

we dismiss. See Harris, 628 F.3d at 1205.

DISMISSED.

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