United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-10034
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KINTE L. JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-125
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kinte L. Johnson appeals his guilty plea conviction for
possession with intent to distribute a Schedule II controlled
substance and possession of a firearm in furtherance of a drug
trafficking crime in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A) and 18 U.S.C. § 924(c).
Johnson argues that his guilty plea was unknowing because
his depression left him unable to grasp the consequences of his
plea and because the plea colloquy was insufficient to allow him
to make an informed decision about his plea. Where a motion to
*
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this opinion should not be published and is not precedent except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. 06-10034
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withdraw a guilty plea is made prior to sentencing, it may be
withdrawn if “the defendant can show a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d). Given the
absence of a credible assertion of innocence, the delay in filing
the motion, the possible inconvenience and waste of judicial
resources, Johnson’s and his counsel’s responses during the plea
colloquy regarding his depression and ability to understand, and
the totality of the circumstances, the district court’s
conclusion does not represent an abuse of discretion. See United
States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984).
Johnson also argues that the district court erred by
refusing to grant his continuance of the hearing on his motion to
withdraw his guilty plea. Johnson has failed to show that the
denial was “arbitrary or unreasonable” and that the denial of the
continuance resulted in prejudice that is “specific and
compelling” or “serious.” See United States v. Barnett, 197 F.3d
138, 144 (5th Cir. 1999); United States v. Hughey, 147 F.3d 423,
431 (5th Cir. 1998). Accordingly, the district court’s denial of
the motion to continue a hearing was not an abuse of discretion.
See Barnett, 197 F.3d at 144.
Johnson further argues that the district court erred by
rejecting the testimony of his expert witness, Dr. Kelly Rene
Goodness, a clinical and forensic psychologist, on the
sufficiency of the plea colloquy to evaluate Johnson’s guilty
plea. Johnson’s attempt to analogize expert testimony, based
No. 06-10034
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upon scientific data, relating the weaknesses in eyewitness
identifications to Goodness’s testimony, based upon her cursory
review of Johnson’s rearraignment transcript, identifying
weaknesses in the plea colloquy questioning, is without merit.
Goodness did not provide an explanation regarding any methodology
for assessing whether the plea colloquy questions would allow her
to determine if Johnson had a rational understanding at the
rearraignment. Accordingly, the district court’s decision to
exclude Goodness’s expert testimony was not an abuse of
discretion. See United States v. Dixon, 413 F.3d 520, 523 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1139 (2006).
Johnson also argues that the factual basis was insufficient
to support his conviction because it failed to establish that he
used the firearms in furtherance of the drug trafficking offense.
Because Johnson did not challenge the sufficiency of the factual
basis in the district court, review is for plain error only.
United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en
banc). Johnson’s argument that the Government failed to allege
or prove possession of the firearms in furtherance of a drug
trafficking crime is without merit. See United States v.
Ceballos-Torres, 218 F.3d 409, 412-13 (5th Cir.), amended on
other grounds, 226 F.3d 651 (5th Cir. 2000).
The stipulated facts, which Johnson confirmed were true and
accurate at the rearraignment, indicate that the eight firearms
found in Johnson’s residence were not locked in a safe away from
No. 06-10034
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the drugs. Instead, they were easily accessible in Johnson’s
residence and were possessed in Johnson’s master bedroom along
with ammunition and a substantial amount of drugs. Johnson did
not deny that the firearms were used in furtherance of the drug
trafficking when making corrections on the Factual Resume or when
the stipulated facts were read during the rearraignment. The
combination of the Ceballos-Torres factors reasonably supports a
finding that Johnson’s firearms furthered his possession of the
drugs by protecting his drugs against robbery. See
Ceballos-Torres, 218 F.3d at 415. The possession of the
firearms, therefore, was in furtherance of drug trafficking. Id.
Because the factual basis was sufficient to support Johnson’s
guilty plea, Johnson has failed to establish plain error. See
Ceballos-Torres, 218 F.3d at 410-15.
AFFIRMED.