Case: 12-40795 Document: 00512294831 Page: 1 Date Filed: 07/02/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2013
No. 12-40795
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIE CORNELIUS GRAY,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 9:12-CR-2-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Willie Cornelius Gray challenges the district court’s decision denying his
motion to withdraw his guilty plea. A defendant may withdraw his plea before
sentencing if he establishes “a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). Seven factors are relevant to the
determination: (1) whether the defendant asserts his innocence, (2) whether the
Government will be prejudiced, (3) whether the defendant delayed filing the
motion, (4) whether withdrawal will “substantially inconvenience” the court, (5)
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-40795
whether the defendant had “close assistance” of counsel, (6) whether the plea
was knowing and voluntary, and (7) whether withdrawing the plea will waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
We review the district court’s decision for abuse of discretion. United States v.
McKnight, 570 F.3d 641, 645 (5th Cir. 2009). The “‘court abuses its discretion
if it bases its decision on an error of law or a clearly erroneous assessment of the
evidence.’” Id. (quoting United States v. Mann, 161 F.3d 840, 860 (5th Cir.
1998)).
Gray acknowledges that his four-week delay in filing the motion to
withdraw and the inconvenience to the court weighed against his motion. See
Carr, 740 F.2d at 344-45. He also concedes that he received close assistance of
counsel. See id. at 344. Although he suggests that his plea was unknowing and
involuntary because he was “misinformed about certain matters,” he was
“confused about his guilty plea,” and he “expressed reservations about his plea,”
he does not explain what he was misinformed or confused about or how it
affected his decision to plead guilty. Nor does he refute the district court’s
finding that his attorney’s advice was accurate and not misleading. Likewise,
he does not address the district court’s finding that it would waste judicial
resources to block time for a new trial on the court’s crowded docket and to
reschedule the cancelled travel and lodging arrangements for Gray, two
marshals, and chambers staff.
In addition, Gray highlights his own testimony that he understood the
terms of the indictment, the plea agreement, and the factual resume, along with
his testimony showing that he was competent to enter the plea. His solemn
declarations in open court “carry a strong presumption of verity.” United States
v. Adam, 296 F.3d 327, 333 (5th Cir. 2002) (internal quotation marks and
citation omitted).
Although Gray emphasizes that the Government would not be prejudiced
and that he asserted his innocence, the mere “fact that the defendant has
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No. 12-40795
asserted his innocence and the government will not suffer prejudice does not
justify reversing the district court.” Carr, 740 F.2d at 345. Gray argues that his
questions about sentencing provided a fair and just reason for withdrawing the
plea. He acknowledges, however, that sentencing concerns are not a factor
under Carr, and he cites no authority for the proposition that a defendant’s
confusion about sentencing provides a basis for withdrawing his plea.
We find no abuse of discretion, as Gray has not shown that the district
court denied the motion based on an error of law or a clearly erroneous factual
finding. See McKnight, 570 F.3d at 645. The judgment of the district court is
AFFIRMED.
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