Case: 15-10725 Document: 00513702551 Page: 1 Date Filed: 10/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-10725
Fifth Circuit
FILED
Summary Calendar October 3, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GARY ANTHONY COLE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-82-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Gary Anthony Cole, while in federal custody for a separate offense, was
charged with mailing threatening communications in violation of 18 U.S.C.
§ 876(c). He pled guilty to the offense and was sentenced to a 36-month term
of imprisonment, to be followed by a three-year term of supervised release.
Directly after the district court pronounced Cole’s sentence, Cole moved to
withdraw his guilty plea. The motion was denied. On appeal, Cole challenges
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-10725 Document: 00513702551 Page: 2 Date Filed: 10/03/2016
No. 15-10725
only the district court’s denial of his motion to withdraw his guilty plea. We
AFFIRM.
Cole’s motion to withdraw his guilty plea appears to have been based, in
part, on an assertion that his plea was tainted by counsel’s ineffective
assistance. Where a motion to withdraw a plea incorporates a claim of
ineffective assistance, “dismissal of an appeal based on a waiver in the plea
agreement is inappropriate . . . .” See United States v. Henderson, 72 F.3d 463,
465 (5th Cir. 1995). We assume without deciding that review of Cole’s claim is
not barred by his waiver of the right to appeal his conviction and sentence.
Regardless of the waiver, Cole’s underlying claim entitles him to no relief.
Because Cole did not move to withdraw his guilty plea until after he was
sentenced, he cannot obtain the relief he seeks. Federal Rule of Criminal
Procedure 11(e) states that once “the court imposes sentence, the defendant
may not withdraw a plea of guilty or nolo contendere, and the plea may be set
aside only on direct appeal or collateral attack.” Cole’s argument that he
constructively sought to withdraw his plea prior to the pronouncement of his
sentence is unconvincing.
Cole’s conviction and sentence are AFFIRMED.
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