Case: 16-31071 Document: 00514109126 Page: 1 Date Filed: 08/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-31071
Fifth Circuit
FILED
Summary Calendar August 9, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
CHRISTOPHER WHITE,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CR-101-12
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Christopher White appeals his convictions for conspiring to commit
healthcare fraud, in violation of 18 U.S.C. §§ 1347, 1349, and to falsify records
in a federal investigation, in violation of 18 U.S.C. §§ 1347, 1519. White
pleaded guilty subject to a written agreement with the Government, accepting
responsibility for more than $2.2 million in losses to Medicare as a result of his
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-31071
providing, inter alia, accounting and financial services to companies allowing
them to bill Medicare for medically unnecessary services and equipment.
Nine months after entering his guilty plea, White moved to withdraw the
plea because, after reflection, he believed “his behavior was . . . consistent with
the reasonable hypothesis of innocence to the effect that he did nothing more
than fulfill his professional responsibilities as an account[ant]”. After White’s
motion was denied, he obtained new counsel and filed a second motion.
The court denied this motion as well, declining White’s request for a
hearing and relying primarily on the presumed verity of his original
admissions at re-arraignment.
At the subsequent sentencing, the court granted a 30-month downward
variance, and sentenced White to 48 months’ imprisonment for each count, to
run concurrently.
White contends the court abused its discretion by denying his motion to
withdraw the plea without an evidentiary hearing. Consistent with White’s
contention, the denial of a motion to withdraw a plea will be reversed only if
the court abused its broad discretion. United States v. Carr, 740 F.2d 339, 344
(5th Cir. 1984).
White has the burden of establishing a fair and just reason for
withdrawal. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). Along
that line, however, “[s]olemn declarations in open court carry a strong
presumption of verity”. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Such
declarations include White’s “affirmative declarations” of guilt. United States
v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009).
In ruling on a motion to withdraw, the totality of the circumstances is
considered, including the Carr factors:
(1) whether or not the defendant has asserted his innocence; (2)
whether or not the government would suffer prejudice if the
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Case: 16-31071 Document: 00514109126 Page: 3 Date Filed: 08/09/2017
No. 16-31071
withdrawal motion were granted; (3) whether or not the defendant
has delayed in filing his withdrawal motion; (4) whether or not the
withdrawal would substantially inconvenience the court; (5)
whether or not close assistance of counsel was available; (6)
whether or not the original plea was knowing and voluntary; and
(7) whether or not the withdrawal would waste judicial resources;
and, as applicable, the reason why defenses advanced later were
not proffered at the time of the original pleading, or the reasons
why a defendant delayed in making his withdrawal motion.
Carr, 740 F.2d at 343–44 (footnotes omitted).
The district court applied the Carr factors in analyzing, and ultimately
denying, White’s motion to withdraw. On appeal, White fails to show any
abuse of discretion in the court’s application of the factors.
The court’s decision not to conduct a hearing on the second withdrawal
motion is likewise reviewed for abuse of discretion. See United States v.
Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). A hearing is unnecessary unless
“defendant alleges sufficient facts which, if proven, would justify relief”.
United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984) (internal quotation
marks and citation omitted). The failure to conduct a hearing is subject to
harmless-error review. Id.
The court based its denial of the withdrawal motion on the strong
presumption that White’s admissions in the plea proceedings were true and
reliable. Although White makes numerous assertions of fact throughout his
pleadings, he does not identify any particular factual issue that requires
resolution at a hearing. Further, in the light of the court’s reliance on White’s
presumptively truthful statements at rearraignment, an evidentiary hearing
would not have changed the decision. The court did not abuse discretion. See
id.; see also Blackledge, 431 U.S. at 74.
AFFIRMED.
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