United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-50221
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL WILD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:05-CR-1077-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Daniel Wild appeals his guilty-plea conviction for importation
of marijuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1).
For the first time on appeal, Wild contends his plea agreement
is unenforceable because the district court: failed to accept it;
and failed to conform to FED. R. CRIM. P. 11(c)(4) (“If the court
accepts the plea agreement, it must inform the defendant that to
the extent the plea agreement is of the type specified in Rule
*
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this opinion should not be published and is not precedent except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.
11(c)(1)(A) ..., the agreed disposition will be included in the
judgment.”)
If a defendant fails to object to Rule 11 error in district
court, our review is only for plain error. United States v. Vonn,
535 U.S. 55, 58-59 (2002). Under such review, Wild must show a
clear or obvious error that affected his substantial rights. E.g.,
United States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert.
denied, 543 U.S. 1029 (2004). Even then, we retain discretion to
correct the error; ordinarily, we will not do so unless it “affects
the fairness, integrity, or public reputation of judicial
proceedings”. Id. (citation omitted). “[A] defendant who seeks
reversal of his conviction after a guilty plea, on the ground that
the district court committed plain error under Rule 11, must show
a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004).
The rearraignment transcript shows the district court
discussed, and implicitly accepted, the plea agreement in
conjunction with accepting the guilty plea. The court did not
specifically reject the plea agreement, pursuant to FED. R. CRIM. P.
11(c)(5). Wild received the benefits of the plea agreement and has
not shown he would not have pleaded guilty but for the claimed
error. Accordingly, Wild fails to show plain error. See Vonn, 535
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U.S. at 58-59; United States v. Morales-Sosa, 191 F.3d 586, 587-88
(5th Cir. 1999).
Wild further asserts, also for the first time on appeal, the
district court’s claimed failure to accept the plea agreement
renders its waiver provision unenforceable. As noted, the
agreement was implicitly accepted. In any event, the waiver
provision was limited to the right to appeal Wild’s sentence, which
is not at issue.
In addition, Wild contends the district court erred by denying
his motion to withdraw his guilty plea, claiming he did not fully
discuss all potential issues with his counsel. “A district court’s
denial of a motion to withdraw a guilty plea is reviewed for abuse
of discretion.” United States v. Powell, 354 F.3d 362, 370 (5th
Cir. 2003).
Wild has not demonstrated the court abused its discretion in
weighing the relevant factors cited in United States v. Carr, 740
F.3d 339, 343-44 (5th Cir. 1984). The rearraignment transcript
shows that, although Wild was given every opportunity to delay his
guilty plea, he desired to proceed. Further, the record reflects
Wild’s satisfaction with his counsel and his admissions to the
offense of conviction. Wild did not carry his burden of showing a
fair and just reason for withdrawing his plea. See Powell, 354
F.3d at 370.
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Finally, Wild maintains the district court erred by failing
to hold an evidentiary hearing on his plea-withdrawal motion.
Because Wild did not request such a hearing, our review is only for
plain error. See, e.g., Castillo, 386 F.3d at 636. Wild fails to
establish such error, as he presents no specific evidence
establishing either his innocence or his plea’s involuntariness.
See Powell, 354 F.3d at 370-71.
AFFIRMED
4