IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 08-10244
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHARLES COOPER BURGESS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-158-ALL
No. 3:05-CR-220-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Charles Cooper Burgess appeals following his guilty plea convictions for
mail fraud and aiding and abetting bank fraud. Burgess argues that the district
court abused its discretion when it denied his motion to withdraw his guilty plea
and failed to hold an evidentiary hearing.
In determining whether a district court has abused its discretion in
denying a motion withdraw a guilty plea, this court considers a number of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10244
factors, including assertions of innocence, delay in moving to withdraw, the
availability of close assistance of counsel, and the voluntariness of the plea. See
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
Burgess argues that, because his attorney severely underestimated his
likely sentence, his guilty plea was involuntary and he was denied the close
assistance of counsel. Burgess’s contentions are belied by his “solemn
declarations in open court” that he understood his maximum possible sentence
and that he should not rely on any promises of a particular sentence. Blackledge
v. Allison, 431 U.S. 63, 74 (1977); see James v. Cain, 56 F.3d 662, 666 (5th Cir.
1995). Burgess also has not shown that his substantial delay in moving to
withdraw his plea and his unsupported assertion of innocence weigh in favor of
allowing withdrawal. See Carr, 740 F.2d at 344-45.
Burgess has not established that the district court abused its discretion in
denying his motion to withdraw. See United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003). Because Burgess has not “allege[d] sufficient facts which, if
proven, would justify relief,” the district court also did not abuse its discretion
in failing to hold an evidentiary hearing on Burgess’s motion to withdraw his
plea. See id.
AFFIRMED.
2