     Case: 17-40263       Document: 00514282212         Page: 1     Date Filed: 12/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                     No. 17-40263                                   FILED
                                   Summary Calendar                         December 21, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JASON MCLAUGHLIN,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:15-CR-18-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Jason McLaughlin challenges both his guilty-plea conviction for
solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373, and
his sentence of 48 months’ imprisonment, followed by three years’ supervised
release. He asserts: the court abused its discretion by denying his motion to
withdraw his guilty plea, and by doing so without an evidentiary hearing; his
sentence is substantively unreasonable; and he received ineffective assistance
of counsel.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-40263

      Denial of a motion to withdraw a plea is reviewed for abuse of discretion.
United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). Defendant has
the burden of establishing a fair and just reason for such withdrawal. United
States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). In considering the motion,
the court considers the totality of the circumstances, including seven factors:
            (1) whether . . . defendant has asserted his innocence;
            (2) whether . . . the government would suffer prejudice
            if the withdrawal motion were granted; (3) whether . .
            . defendant has delayed in filing his . . . motion; (4)
            whether . . . the withdrawal would substantially
            inconvenience the court; (5) whether . . . close
            assistance of counsel was available; (6) whether . . . the
            original plea was knowing and voluntary; and (7)
            whether . . . the withdrawal would waste judicial
            resources.
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
      McLaughlin contends he never unequivocally declared his guilt and had
a viable entrapment defense. Contrary to his assertion, the record shows he
made “affirmative declarations” of guilt.        McKnight, 570 F.3d at 649.
Moreover, he never unequivocally asserted his innocence. Additionally, a
potential defense, realized after the plea, is not grounds to withdraw a plea on
the basis of claimed innocence. E.g., id.
      The timeliness factor weighs against McLaughlin because his motion
was not filed until eight months after the acceptance of the plea. Further, he
had “close” assistance of counsel, despite his present assertion counsel was
“ineffective.” E.g., id. at 646–48 (finding close assistance even where it was
unclear counsel had given all relevant information to the defendant).
      McLaughlin’s contention his guilty plea was unknowing and involuntary
is not supported by the record. The magistrate judge conducted an extensive
plea colloquy during which McLaughlin expressed his desire to plead guilty,
answered questions from the court in a manner indicating he understood the

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                                     No. 17-40263

nature of the proceedings, and affirmed he was entering his guilty plea
knowingly, freely, and voluntarily.             The “strong presumption of verity”
attaches to this declaration. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
        The court stated withdrawal would waste judicial resources and
prejudice the Government. McLaughlin offers no meaningful basis to dispute
those findings.
        Accordingly, he has not shown the court abused its discretion in
determining the factors weighed against granting his withdrawal motion. See
McKnight, 570 F.3d at 645.
        Regarding   the    court’s   not    conducting    an    evidentiary   hearing,
McLaughlin does not identify any factual issue that required resolution at a
hearing. Therefore, there was no abuse of discretion. E.g., Powell, 354 F.3d at
370.
        In challenging his sentence, McLaughlin asserts it is substantively
unreasonable because the court should have granted a greater downward
variance and should not have imposed a supervised-release term of three
years. Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51.
        But, because McLaughlin did not object to the reasonableness of his
sentence, review is only for plain error. E.g., United States v. Peltier, 505 F.3d
389, 391–92 (5th Cir. 2007).               And, a below-Guidelines sentence is
presumptively reasonable. United States v. Simpson, 796 F.3d 548, 557 (5th
Cir. 2015).



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                                 No. 17-40263

      The court considered McLaughlin’s points on mitigation, including his
personal history and characteristics, the 18 U.S.C. § 3553(a) sentencing
factors, and the Guidelines, and determined a 48-month sentence and three-
year term of supervised release were appropriate. McLaughlin’s assertion the
court should have sentenced him even further below the Guidelines range
merely reflects his disagreement with the propriety of his sentence. E.g.,
Simpson, 796 F.3d at 559 n.63. He has not shown the clear-or-obvious error
needed on plain-error review to disturb the presumption of reasonableness
applicable to his sentence. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
      He also contends his sentence is unreasonable because he qualified for
downward departures under Guidelines §§ 5K2.20, 5K2.12, 5H1.3, and 5K2.10.
Though he characterizes these claimed errors as substantive challenges to the
denial of downward variances, he essentially challenges the court’s failure to
grant departures under the Guidelines. E.g., United States v. Jacobs, 635 F.3d
778, 782–83 (5th Cir. 2011) (explaining distinction between departures and
variances). We lack jurisdiction to review such challenges. E.g., United States
v. Sam, 467 F.3d 857, 861 (5th Cir. 2006).
      Finally, for numerous reasons, such as claiming his counsel was
ineffective in failing to inform him of a viable entrapment defense, McLaughlin
contends his counsel was ineffective. The determination whether counsel was
ineffective, based on the numerous claims by McLaughlin, involves a fact-
intensive inquiry, and the issues raised were not developed in district court.
Accordingly, we decline to review this claim on direct appeal. E.g., United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
      AFFIRMED.




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