United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-31048
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD RAY HOWARD, also known as Dirty,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CR-50015-1
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Donald Ray Howard appeals his guilty-plea conviction for
conspiracy to possess with intent to distribute 500 grams or more
of cocaine. Howard contends that the district court erred in
denying his motion to withdraw his guilty plea. We AFFIRM.
The district court may grant a motion to withdraw a guilty
plea before a defendant is sentenced if the defendant shows any
“fair and just reason.” FED. R. CRIM. P. 11(d)(2). “A motion to
withdraw a guilty plea is committed to the discretion of the
district court and its decision will not be disturbed absent an
1
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that this opinion should not be published and is not precedent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.
abuse of discretion.” United States v. Still, 102 F.3d 118, 123
(5th Cir. 1996). “The burden of establishing a fair and just
reason for withdrawing a guilty plea remains at all times on the
defendant.” Id. at 124.
Factors to be considered by the district court in applying the
standard of “a fair and just reason” are (1) whether the defendant
asserted his innocence; (2) whether withdrawal would prejudice the
Government; (3) whether the defendant delayed in filing the motion;
(4) whether withdrawal of the plea would substantially
inconvenience the court; (5) whether close assistance of counsel
was available; (6) whether the plea was knowing and voluntary; and
(7) whether withdrawal would waste judicial resources. See United
States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). After a
hearing at which Howard declined to testify, the district court
found, inter alia, that Howard’s guilty plea was knowing and
voluntary and that he had had the effective assistance of counsel.
Howard contends that the Carr test is not applicable because
his plea bargain was void for lack of consideration, citing
Mabry v. Johnson, 467 U.S. 504 (1984). In that case, the state
prisoner (Johnson) sought relief on grounds that the prosecutor
withdrew a plea offer after Johnson had agreed to accept it.
467 U.S. at 505-06. The Court denied relief to Johnson, holding
that “because it did not impair the voluntariness or intelligence
of his guilty plea, [Johnson’s] inability to enforce the
prosecutor’s offer [was] without constitutional significance.” Id.
at 510. Similarly, any shortcomings in Howard’s plea agreement do
2
not entitle him to relief because the record supports the district
court’s findings that his guilty plea was knowing and
understandingly made and there was no evidence that it was induced
by the plea agreement. Thus, the district court did not abuse its
discretion by denying Howard’s request to withdraw his plea. See
United States v. Lampazianie, 251 F.3d 519, 523-25 (5th Cir. 2001).
AFFIRMED.
3