IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2008
No. 07-31099
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VIRGIL ARD, JR,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-8-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Virgil Ard, Jr. was charged with one count of conspiring to possess 50
grams or more of crack cocaine with intent to distribute, one count of possessing
with intent to distribute 50 grams or more of crack cocaine, and one count of
brandishing a firearm in furtherance of a drug trafficking offense. Ard pleaded
guilty to the first and third counts, but later changed his mind and sought to
withdraw his plea. He appeals the district court’s order denying his request. We
affirm.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 07-31099
I.
The clerk originally scheduled Ard’s rearraignment for May 2, 2007;
however, he requested additional time to understand the consequences of his
guilty plea. On May 16, 2007, he pleaded guilty pursuant to an amended written
plea agreement to the conspiracy and firearm charges. In the plea agreement,
Ard waived his right to appeal his conviction and sentence, reserving his right
to appeal only a punishment exceeding the statutory maximum and a claim of
ineffective assistance of counsel that affected the validity of the plea or the
waiver itself.
Ard wrote to the court in a pro se letter dated June 4, 2007, expressing a
desire to withdraw his guilty plea. He reported that he had not pleaded guilty
on May 2 because his plea agreement was altered and that his attorney, Harry
Boyer, did not discuss the plea with him until the morning of his rearraignment
on May 16. Ard stated that Boyer told him the “reality” was that Ard’s wife
would be arrested and Ard would lose at trial and “receive about 40 years in
prison” if he did not plead guilty. Evidently, he had planned to tell the probation
officer preparing his presentence report about this and other concerns, but he
had not yet been interviewed. Ard further requested appointment of new
counsel, and provided a copy of the original plea offer made on April 30, 2007,
which indicated that the firearm count carried a mandatory minimum sentence
of five years; however, the amended plea agreement correctly reflected a
minimum sentence of seven years for brandishing a firearm. See 18 U.S.C.
§ 924(c)(1)(A)(ii).
Following a hearing, the magistrate judge appointed new counsel to
represent Ard and granted Boyer’s motion to withdraw. On September 13, 2007,
Ard formally moved to withdraw his guilty plea. In an affidavit, Ard asserted
for the first time that the arresting agent had told him that his wife would be
arrested and his children would be taken into state custody if he did not admit
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No. 07-31099
to possessing the drugs. The government filed a response, arguing that Ard was
not entitled to withdraw his plea.
The district court denied Ard’s motion without holding an evidentiary
hearing, and sentenced him to consecutive sentences of 120 months and eighty-
four months in prison, to be followed by a five-year term of supervised release.
Ard filed a timely notice of appeal.
II.
Federal Rule of Criminal Procedure 11(d)(2) allows a defendant to
withdraw an accepted plea in limited circumstances, namely, when he can show
a “fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant does not
have an absolute right to withdraw [his] guilty plea. However, a district court
may, in its discretion, permit withdrawal before sentencing if the defendant can
show a ‘fair and just reason.’” United States v. Powell, 354 F.3d 362, 370 (5th
Cir. 2003) (citations omitted). “The burden of establishing a fair and just reason
for withdrawing a guilty plea remains at all times on the defendant.” United
States v. Still, 102 F.3d 118, 124 (5th Cir. 1996) (citations omitted).
“A district court’s denial of a motion to withdraw a guilty plea is reviewed
for abuse of discretion.” Powell, 354 F.3d at 370 (citations omitted). A district
court abuses its discretion when it “(1) relies on clearly erroneous factual
findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to
the facts.” McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003) (citation
omitted). When analyzing a defendant’s request to withdraw his guilty plea, the
district court should consider whether: (1) the defendant has asserted his
innocence, (2) withdrawal would prejudice the Government, (3) the defendant
has delayed in filing his withdrawal motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was available, (6) the
original plea was knowing and voluntary, and (7) withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
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No. 07-31099
The district court need not make findings as to each factor, but makes its
decision based on the totality of circumstances. Powell, 354 F.3d at 370.
A defendant is not entitled to a hearing on his motion to withdraw, but “a
hearing is required when the defendant alleges sufficient facts which, if proven,
would justify relief.” Id. (internal quotation marks and citation omitted). This
court reviews the district court’s decision not to hold an evidentiary hearing for
abuse of discretion. Id.
Regarding the first Carr factor, Ard has not asserted that he is innocent
of the drug and firearm offenses. Ard argues without authority that he “retains
the presumption of innocence because his plea was not knowing and voluntary.”
Carr does not list as a factor whether a defendant is presumed to be innocent;
the case considers whether the defendant asserted that he was in fact innocent.
See 740 F.2d at 343–44; see also United States v. Lampazianie, 251 F.3d 519, 524
(5th Cir. 2001) (noting that the defendant had not alleged innocence even though
he had argued that his plea was the result of coercion). The district court did not
abuse its discretion in deciding that this factor does not weigh in Ard’s favor.
Next, with regard to the third Carr factor, Ard asserts that he did not
delay in asking to withdraw his plea based upon his letter to the court dated
nineteen days after his rearraignment. The district court gave Ard the benefit
of this date but concluded that he waited too long. Ard supposedly had planned
to advise the court earlier of his intention to withdraw his plea by informing the
probation officer who would prepare his presentence report, but he finally wrote
the court when he did not see a probation officer within those first weeks after
rearraignment. He argues that because he was in prison, he was dependent
upon others to represent him before the district court. This assertion is
undermined by Ard’s ability to write a letter to the district court. The district
court did not abuse its discretion in deciding that the delay weighed against
withdrawal of the plea. See Powell, 354 F.3d at 370; see also Carr, 740 F.2d at
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No. 07-31099
345 (finding that a twenty-two-day delay in seeking withdrawal of a guilty plea
was not timely).
Regarding the second and fourth Carr factors, Ard argues that in light of
the simple facts underlying the case, the government would not be unduly
prejudiced and the court would not be unduly inconvenienced. The district court
noted that there would be some prejudice and inconvenience since Ard’s
codefendant had already pleaded guilty and the parties would be required “to
resurrect a case which at the present time is nearly closed.” Further, we need
not consider prejudice until Ard has presented “a good reason for being allowed
to withdraw his plea.” United States v. Benavides, 793 F.2d 612, 617 (5th Cir.
1986) (internal quotation marks omitted). Ard has not made such a showing.
As to the voluntariness of his guilty plea, the sixth Carr factor, Ard
maintains that he was unable to confer adequately with his attorney to discuss
defenses and consider the evidence against him and that he was coerced to plead
guilty on the basis of threats to charge his wife with a crime. To enter a knowing
and voluntary guilty 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). Prior to accepting his guilty plea, the district court ascertained
that Ard was not under the influence of drugs or alcohol and that he had had
sufficient time to discuss his case and possible defenses with counsel. Ard
affirmed that he knew he could plead not guilty and that he understood the
rights he was waiving through his plea. The court informed Ard of the elements
of the offenses to which he was pleading guilty and the possible sentences he
could receive. Ard confirmed that he had committed the offenses and that he
understood the possible penalties, including the mandatory minimum sentences.
Ard denied that he had been promised anything other than the items contained
in the plea agreement and that he had not been threatened or coerced into
pleading guilty.
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No. 07-31099
The plea colloquy reveals that Ard understood the consequences of
pleading guilty. “[S]olemn declarations in open court carry a strong presumption
of verity.” Lampazianie, 251 F.3d at 524 (internal quotation marks and citation
omitted). A defendant ordinarily may not refute testimony given while under
oath at a plea hearing. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th
Cir. 1998).
Ard now maintains, however, that his plea was involuntary. He asserts
that Boyer did not assist him before he entered his guilty plea. Ard notes that
he sent a letter to the court in February 2007 in which he alleged that his
communication with Boyer was “poor” and that counsel had not yet provided him
any discovery or transcripts. This letter, sent one month after the indictment
issued and three months before Ard’s guilty plea, does not constitute any
evidence of counsel’s assistance or advice to Ard at the time of his plea.
Ard also notes that in his June 4 letter to the court and in his affidavit
filed with his formal motion to withdraw, he asserted that he had not had
sufficient time to discuss his plea with Boyer before he entered his plea. The
record as a whole does not support Ard’s assertion. Ard admitted in his letter
that he did talk to Boyer on the morning of his plea and that they discussed the
agreement and possible defenses, but Boyer advised him that he had little
likelihood of success if he proceeded to trial. This fact corroborates Ard’s
statement during rearraignment that he had discussed his case and defenses
with Boyer.
Moreover, during the hearing regarding Boyer’s withdrawal, Ard argued
that Boyer had not obtained any discovery or filed any pretrial motions. Boyer
disputed this assertion, noting that he had filed pretrial motions and that he and
Ard had attended a meeting with the United States Attorney to see the evidence.
Ard did not dispute this statement. In his affidavit, Ard contended merely
“[t]hat he did not adequately consult with his attorney before he pled guilty,
neither reviewing any evidence nor discussing possible defenses.” This assertion
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No. 07-31099
is belied by Ard’s statements in his June 4 letter and Boyer’s uncontested
assertions at the hearing. Moreover, such a conclusory assertion is insufficient
to establish that Ard could overcome his sworn statements at rearraignment.
Likewise, Ard’s sworn statements at rearraignment also undermine his
complaints about the threats made to prosecute his wife. In support of his claim
that threats were made, Ard refers to the affidavit of Special Agent Chad Scott
supporting the criminal complaint. In the affidavit, Scott reported that Ard
asked him if his wife was going to be arrested, and Scott informed Ard that she
would not be arrested if she was not involved in the offense. In his affidavit filed
with his motion to withdraw, Ard asserted that the prosecution had threatened
to bring charges against his wife and that Scott claimed to have evidence
incriminating Ard’s wife that would be used if Ard did not admit to possessing
the drugs.
However, Ard testified in open court that the government had not offered
him anything beyond the plea agreement in exchange for his plea and that no
one threatened him. Further, the only direct evidence of statements made by a
government agent about Ard’s wife (apart from Ard’s self-serving affidavit that
contradicts his sworn testimony in open court) does not indicate the agent’s
answer was improper—that she would not be arrested if it was determined that
she did not commit a crime. The district court did not abuse its discretion in
rejecting Ard’s claim that his plea was involuntary.
Regarding the fifth Carr factor, Ard asserts that he was not closely
assisted by counsel. As noted, he has not shown that counsel failed to advise
him about the effects of his plea, the possible defenses, and the likelihood of
success at trial. Moreover, as the district court observed, Boyer filed a motion
to suppress on behalf of Ard and obtained a plea in which one count of the
indictment was dismissed. Ard implies that counsel’s participation in the plea
negotiations worsened his position because his original plea agreement offered
him a mandatory minimum sentence of fifteen years in prison while the ultimate
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No. 07-31099
plea resulted in a mandatory minimum sentence of seventeen years in prison.
The original plea offer, however, did not set forth the proper mandatory
minimum sentence for Ard’s offense of brandishing a weapon. See 18 U.S.C.
§ 924(c)(1)(A)(ii). Ard has not shown that he was deprived of counsel’s assistance
in conjunction with his plea.
In conclusion, Ard has not established that the district court abused its
discretion in denying his motion to withdraw his plea.1 Given the totality of
circumstances in this case, we cannot say that the district court erred in law or
in fact, or in the application of the former to the latter. Thus, we do not find an
abuse of discretion. Likewise, Ard has not alleged sufficient facts to justify relief
on his claim, and the district court did not abuse its discretion by refusing to
hold an evidentiary hearing before denying relief.
III.
The judgment of the district court is AFFIRMED.
1
Because we uphold the guilty plea, we need not consider the government’s alternative
argument based on the plea agreement’s waiver of appeal.
8