IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2009
No. 08-30593
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LANCE EVERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:07-CR-118-1
Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Lance Everson appeals his guilty-plea conviction, arguing that the district
court abused its discretion by denying, without an evidentiary hearing, his mo-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30593
tion to withdraw his plea. A decision not to hold a hearing on a motion to with-
draw is reviewed for abuse of discretion. United States v. Powell, 354 F.3d 362,
370 (5th Cir. 2003).
Although a defendant is not entitled to an evidentiary hearing on a motion
to withdraw, “a hearing is required when the defendant alleges sufficient facts
which, if proven, would justify relief.” Id. (internal quotation and citation omit-
ted). Everson’s motion was brought under F ED. R. C RIM. P. 11(d)(2), which per-
mits withdrawal after a plea has been entered and before sentencing if the de-
fendant shows a “fair and just reason” based on the totality of the circumstances.
Id. (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)).
Absent the inferences Everson asks the courts to draw from the allegations
in his motion, he did not offer sufficient facts to justify withdrawal of the plea;
he presented only a belated motion based on the vague assertion of the reappear-
ance of a potential witness. The court thus did not abuse its discretion. Powell,
354 F.3d at 370.
Further, Everson has not shown that he would be entitled to relief under
the totality of the Carr factors. In evaluating a motion to withdraw, no single
Carr factor is determinative; instead, the court makes its decision based on the
totality of the circumstances. See United States v. Badger, 925 F.2d 101, 104
(5th Cir. 1991). “The rationale for allowing a defendant to withdraw a guilty
plea is to permit him to undo a plea that was unknowingly made at the time it
was entered. The purpose is not to allow a defendant to make a tactical decision
to enter a plea, wait several weeks, and then obtain a withdrawal if he believes
that he made a bad choice in pleading guilty.” Carr, 740 F.2d at 345. Because
Everson has failed to show that any of the Carr factors favored withdrawal, the
refusal to hold an evidentiary hearing, even if error, was thus also harmless. See
Powell, 354 F.3d at 370-71.
The judgment of conviction is AFFIRMED.
2