United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
Clerk
No. 05-10162
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AVERY LASHAUN BENNETT, also known as Soldier,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:04-CR-41-4
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Avery Lashaun Bennett pleaded guilty to possession with
intent to distribute less than 50 grams of cocaine base and
aiding and abetting. Bennett appeals the district court’s denial
of his motion to withdraw his guilty plea.
Notwithstanding that under oath at his guilty plea hearing,
he admitted his guilt and admitted that the facts to support his
plea of guilty were accurate, Bennett asserts that he is
innocent. Bennett, however, has not set forth any facts or
*
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this opinion should not be published and is not precedent except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.
No. 05-10162
-2-
evidence in support of his assertion of innocence. A claim of
innocence, standing alone, is insufficient to allow the
withdrawal of a guilty plea. United States v. Rojas, 898 F.2d
40, 43 (5th Cir. 1990); see United States v. Carr, 740 F.2d 339,
344 (5th Cir. 1984).
Bennett contends that, as a result of United States v.
Booker, 125 S. Ct. 738 (2005), he was denied his Sixth Amendment
right to effective assistance of counsel and his plea was not
voluntary. Booker was decided on January 12, 2005, which was
after Bennett’s guilty plea on September 23, 2004. “The
determination whether the performance of counsel was deficient is
based upon the law as it existed at the time of trial.” Lucas v.
Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998). At the time
Bennett pleaded guilty, the Sentencing Guidelines were mandatory;
therefore, counsel was not deficient in using the Sentencing
Guidelines to advise Bennett as to his potential sentence. See
United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004),
vacated, 125 S. Ct. 1003 (2005); see also Strickland v.
Washington, 466 U.S. 668, 689-94 (1984).
Additionally, to enter a knowing and voluntary plea, the
defendant must have “a full understanding of what the plea
connotes and of its consequence.” Boykin v. Alabama, 395 U.S.
238, 244 (1969). “As long as the defendant understood the length
of time he might possibly receive, he was fully aware of his
plea's consequences.” United States v. Rivera, 898 F.2d 442, 447
No. 05-10162
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(5th Cir. 1990) (brackets, internal quotation marks, and citation
omitted). The district court clearly informed Bennett of the
possible maximum penalty for the crime he was pleading guilty to,
and, after being told this information, Bennett continued with
his plea. Therefore, Bennett’s plea was knowing and voluntary.
See United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990).
Considering the totality of the circumstances, it is clear
that Bennett did not establish a fair and just reason for
withdrawing his guilty plea. See Carr, 740 F.2d at 343-44 (5th
Cir. 1984). The district court did not abuse its discretion in
denying Bennett’s motion to withdraw his guilty plea. See id.
Accordingly, the district court’s judgment is AFFIRMED.