                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS           June 25, 2004
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 03-31048
                          Summary Calendar



                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                               versus

               DONALD RAY HOWARD, also known as Dirty,

                                                  Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 03-CR-50015-1
                       --------------------

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:1

     Donald Ray Howard appeals his guilty-plea conviction for

conspiracy to possess with intent to distribute 500 grams or more

of cocaine.     Howard contends that the district court erred in

denying his motion to withdraw his guilty plea.      We AFFIRM.

     The district court may grant a motion to withdraw a guilty

plea before a defendant is sentenced if the defendant shows any

“fair and just reason.”    FED. R. CRIM. P. 11(d)(2).    “A motion to

withdraw a guilty plea is committed to the discretion of the

district court and its decision will not be disturbed absent an


     1
        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that this opinion should not be published and is not precedent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.
abuse of discretion.”        United States v. Still, 102 F.3d 118, 123

(5th Cir. 1996).       “The burden of establishing a fair and just

reason for withdrawing a guilty plea remains at all times on the

defendant.”      Id. at 124.

      Factors to be considered by the district court in applying the

standard of “a fair and just reason” are (1) whether the defendant

asserted his innocence; (2) whether withdrawal would prejudice the

Government; (3) whether the defendant delayed in filing the motion;

(4)    whether     withdrawal       of   the    plea      would    substantially

inconvenience the court; (5) whether close assistance of counsel

was available; (6) whether the plea was knowing and voluntary; and

(7) whether withdrawal would waste judicial resources.                See United

States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).                     After a

hearing at which Howard declined to testify, the district court

found, inter alia, that Howard’s guilty plea was knowing and

voluntary and that he had had the effective assistance of counsel.

      Howard contends that the Carr test is not applicable because

his plea     bargain   was   void    for     lack   of   consideration,    citing

Mabry v. Johnson, 467 U.S. 504 (1984).               In that case, the state

prisoner (Johnson) sought relief on grounds that the prosecutor

withdrew a plea offer after Johnson had agreed to accept it.

467 U.S. at 505-06.      The Court denied relief to Johnson, holding

that “because it did not impair the voluntariness or intelligence

of    his   guilty   plea,     [Johnson’s]      inability     to   enforce    the

prosecutor’s offer [was] without constitutional significance.” Id.

at 510.     Similarly, any shortcomings in Howard’s plea agreement do


                                         2
not entitle him to relief because the record supports the district

court’s   findings   that   his   guilty   plea   was   knowing   and

understandingly made and there was no evidence that it was induced

by the plea agreement.   Thus, the district court did not abuse its

discretion by denying Howard’s request to withdraw his plea.      See

United States v. Lampazianie, 251 F.3d 519, 523-25 (5th Cir. 2001).

     AFFIRMED.




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