Case: 15-20639 Document: 00513704774 Page: 1 Date Filed: 10/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20639 FILED
Summary Calendar October 4, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JERMAINE COMEAUX,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-439-2
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jermaine Comeaux appeals his guilty-plea conviction for conspiracy to
commit wire fraud and aggravated identity theft, in violation of 18 U.S.C.
§§ 1343, 1349, 1028A. He contends for the first time on appeal that the district
court failed to admonish him regarding any mandatory minimum penalty, as
required by FED. R. CRIM. P. 11(b)(1)(I), thus rendering his guilty plea
unknowing and involuntary. Because Comeaux failed to raise this Rule 11
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20639 Document: 00513704774 Page: 2 Date Filed: 10/04/2016
No. 15-20639
challenge in the district court, we apply a plain-error standard of review. See
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002). There is no
mandatory minimum penalty applicable to conspiracy to commit wire fraud,
and the district court properly admonished Comeaux regarding the mandatory
two-year consecutive sentence for aggravated identity theft. See §§ 1343, 1349,
1028A. The district court thus did not err, plainly or otherwise, in complying
with the Rule 11(b)(1)(I) requirement to admonish Comeaux regarding any
mandatory minimum penalty. See Reyes, 300 F.3d at 558.
Additionally, Comeaux asserts that the district court erred in denying
his motion to withdraw his guilty plea. We accord broad discretion to the
district court’s decision to deny such a motion. United States v. Carr, 740 F.2d
339, 344 (5th Cir. 1984). “[A] defendant may withdraw a guilty plea after the
court has accepted it, but prior to sentencing, only if he ‘can show a fair and
just reason for requesting the withdrawal.’” United States v. Harrison, 777
F.3d 227, 234 (5th Cir. 2015) (quoting FED. R. CRIM. P. 11(d)(2)(B)). In deciding
whether the defendant has made this showing, a court should consider
whether: the original plea was knowing and voluntary; the defendant has
delayed in filing his motion to withdraw and has asserted his innocence; close
assistance of counsel was available to the defendant; and the withdrawal would
prejudice the Government, substantially inconvenience the court, or waste
judicial resources. See Carr, 740 F.2d at 343-44.
Although Comeaux disagrees with the district court’s assessment of the
Carr factors and points to specific facts in support of his own assessment of
those factors, we find no abuse of discretion. Comeaux has not shown that the
district court denied the motion based on an error of law or a clearly erroneous
factual finding. See Carr, 740 F.2d at 344; Harrison, 777 F.3d at 234. The
judgment of the district court is AFFIRMED.
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