USA v. Clyde Sistrunk

Filing

UNPUBLISHED OPINION FILED. [09-30813 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/09/2010 for Appellant Clyde Sistrunk [09-30813]

USA v. Clyde Sistrunk

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Case: 09-30813

Document: 00511266987

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30813 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C L Y D E SISTRUNK, also known as Angel Sistrunk, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:08-CR-256-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Clyde Sistrunk appeals his conviction for possession w it h intent to distribute 3,4-methylenedioxymethamphetamine (MDMA). He a s s e r t s that he moved to withdraw his guilty plea at the sentencing hearing and t h a t the district court abused its discretion in failing to hold an evidentiary h e a r in g on the basis for his request and in denying the motion. "A district court's denial of a motion to withdraw a guilty plea is reviewed fo r abuse of discretion." United States v. Powell, 354 F.3d 362, 370 (5th Cir.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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2 0 0 3 ). Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may w it h d r a w his plea after the district court has accepted it, but before the im p o s it io n of sentence, if the defendant can show "a fair and just reason for r e q u e s tin g the withdrawal." District courts should consider seven factors when r u lin g on a motion to withdraw a guilty plea: "(1) whether the defendant a s s e r t e d his innocence, (2) whether withdrawal would prejudice the government, (3 ) whether the defendant delayed in filing the motion, (4) whether withdrawal w o u ld inconvenience the court, (5) whether adequate assistance of counsel was a v a ila b le to the defendant, (6) whether the plea was knowing and voluntary, and (7 ) whether withdrawal would waste judicial resources." United States v.

H e n d e r s o n , 72 F.3d 463, 465 (5th Cir. 1995) (citing United States v. Carr, 740 F .2 d 339, 343-44 (5th Cir. 1984)). Sistrunk does not address the Carr factors. He never asserted his

in n o c e n c e ; on the contrary, he specifically admitted that he possessed with in t e n t to distribute 50,000 MDMA pills. Sistrunk has pointed to nothing in the r e c o r d to show that his guilty plea was not knowing and voluntary; and we have h e ld that, to the extent a defendant's challenge to his plea would necessitate c o n s id e r a t io n of evidence outside the record, "a direct appeal is not the proper a v e n u e for raising such a claim." United States v. Bell, 966 F.2d 914, 918 (5th C ir . 1992). In addition, Sistrunk specifically acknowledged at his rearraignment t h a t he had ample opportunity to discuss his case with his attorney and was s a t i s fie d with his attorney's services. The district court did not abuse its

d is c r e t io n by sentencing Sistrunk despite his expressed desire to withdraw his g u ilt y plea. See Powell, 354 F.3d at 370; see also Carr, 740 F.2d at 344 ("The p u r p o s e [of allowing withdrawal of a guilty plea] is not to allow a defendant to m a k e a tactical decision to enter a plea, wait several weeks, and then obtain a w it h d r a w a l if he believes that he made a bad choice in pleading guilty."). To the extent that Sistrunk complains of the district court's failure to hold a n evidentiary hearing on a motion to withdraw his guilty plea, he has failed to 2

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Date Filed: 10/19/2010

a lle g e sufficient facts that, if proved, would justify relief. See Powell, 354 F.3d a t 370; see also Bell, 966 F.2d at 916-17 (rejecting a claim that the district court w a s required to warn the defendant that his unconditional guilty plea waived his r ig h t to appeal the denial of his speedy trial motion). Furthermore, Sistrunk s p e c ific a lly disclaims any Sixth Amendment challenge to his attorney's p e r fo r m a n c e . A F F IR M E D .

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