     Case: 12-30247    Document: 00512212104     Page: 1   Date Filed: 04/17/2013




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

                                                                  FILED
                                                                  April 17, 2013

                                  No. 12-30247                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

EMMETT L. MINOR,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Appellant Minor was sentenced pursuant to a guilty plea to 120 months
in prison and a five-year term of supervised release for one count of conspiracy
to distribute and to possess with intent to distribute 50 grams or more of cocaine
base or crack cocaine. 21 U.S.C. § 846. He signed a factual basis for the plea
agreement that admitted he delivered five kilograms of cocaine powder that
co-defendants then converted into crack. Now on appeal, he challenges the
court’s alleged failure to rule on his pro se request to withdraw the guilty plea
and seeks re-sentencing under the Fair Sentencing Act, Pub. L. No. 111-220,
124 Stat. 2372 (2010), based on Dorsey v. United States, 132 S. Ct. 2321 (2012).
We reject both contentions.
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                                 No. 12-30247

1.    Withdrawal of Guilty Plea
      According to Minor, he entered his May 2011 guilty plea unwillingly,
regretted having pled within a short time after testifying the plea was voluntary,
and discussed these views with his court-appointed counsel Mr. Harville on
numerous occasions. Nothing out of the ordinary appears in the documents
supporting the plea agreement or in the testimony Minor gave that persuaded
the magistrate judge to recommend acceptance of the plea, and there were no
omissions in the plea colloquy. The court accepted the plea in June.
      Minor’s attempt to withdraw his plea appears in two letters written pro
se to the district judge that also expressed unhappiness with his counsel. The
matter culminated at a hearing on November 7, 2011, in which the court took
up, first, Minor’s request to have alternative counsel appointed, and second,
whether to hear the motion to withdraw the guilty plea. The court fully advised
Minor of the considerations surrounding its decision whether to permit counsel’s
withdrawal, and then heard testimony from Minor and the lawyer.              The
government was present but had nothing to say. After hearing all of Minor’s
complaints, and counsel’s response, the court denied the motion to appoint
substitute counsel. The court then rejected Minor’s pro se motion to withdraw
the guilty plea because, being represented by counsel, he had no right to hybrid
representation and thus no right to file a motion in his own behalf.
      As an epilogue to these events, the court rescheduled Minor’s sentencing
not once but twice more. At one subsequent hearing, Minor was allowed to
dismiss Harville, with the option either to retain another lawyer or represent
himself. Minor, fully advised, proceeded to sentencing pro se. Minor never
renewed the motion to withdraw his guilty plea.
      Represented by adroit court-appointed counsel on appeal, Minor asserts
that he had a right to attempt to withdraw his guilty plea and a plausible basis
for doing so, and counsel’s refusal to file the motion deprived him of counsel

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                                       No. 12-30247

within the meaning of the Sixth Amendment. We see this claim much more
narrowly.1 18 U.S.C. § 3006A(c) provides that “the court may, in the interests
of justice, substitute one appointed counsel for another at any stage of the
proceedings.” Here, the court fulfilled its duty to examine whether Minor had
provided sufficient grounds for such a substitution and concluded he had not.
We review this decision for abuse of discretion, United States v. Simpson,
685 F.3d 300 (5th Cir. 2011), and find none. From what the transcript and
record reveal, the judge had ample reason to consider that Minor’s counsel
appeared to have secured an extremely favorable plea deal that lessened, by
many years, the potential sentence to which he might have otherwise been
exposed. The government, for instance, had withdrawn a Section 851 notice of
penalty enhancement regarding one of his prior felony drug convictions.
       Further, the court had every reason to believe that Minor’s counsel had
taken appropriate steps to determine there were no grounds to sustain the
withdrawal of the plea agreement. “[I]t is well settled that there is no absolute
right to withdraw a guilty plea before the imposition of sentence.” United States



       1
        Thus, while we may assume arguendo that the filing of a motion to withdraw a guilty
plea stands on the same “critical” footing as does the initial decision to plead, and therefore
Minor was entitled to court-appointed counsel at this juncture, the cases he cites are
distinguishable. In those cases, counsel was allowed to withdraw (literally or functionally),
and no intervening counsel was appointed when the defendant was forced to pursue pro se
motions. See Forbes v. United States, 574 F.3d 101 (2d Cir. 2009); United States v.
Segarra–Rivera, 473 F.3d 381 (1st Cir. 2007); United States v. Garrett, 90 F.3d 210 (7th Cir.
1996); United States v. Crowley, 529 F.2d 1066 (3d Cir. 1976); United States v. Joslin,
434 F.2d 526 (D.C. Cir. 1970).

       See also United States v. Robles, 445 F. App’x 771, 778 (5th Cir. 2011) (citing the
foregoing cases and stating that this court assumes “that the hearing on a motion to withdraw
a guilty plea [i]s a critical stage of the proceedings requiring the right to counsel”); United
States v. Presley, 415 F. App’x 563, 568 (5th Cir. 2011) (same). In United States v. Harris,
304 F. Appx 270 (5th Cir. 2008)(unpublished), we treated a nearly identical claim as raising
a Sixth Amendment ineffectiveness claim, which this court rarely reviews on direct appeal.
We cite these non-precedential cases from the Fifth Circuit to show only the consistency of our
decisions. The instant case is published and precedential to confirm our approach.

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                                  No. 12-30247

v. Carr, 740 F. 2d 339, 344 (5th Cir. 1984). “The standard for determining
whether or not a defendant may withdraw his guilty plea prior to sentencing is
whether ‘for any reason the granting of the privilege seems fair and just.’
Federal courts have uniformly applied this well established standard.” Id. at
343 (citations omitted). The testimony of Minor and his attorney at the hearing
do not reveal any basis for concluding that, even with counsel’s assistance, Minor
would have been able to show that “fair[ness] and just[ice]” required that he be
allowed to withdraw his guilty plea. See id. Minor’s protestation of “innocence”
was unrealistic and unsupported. Additionally, Minor did not aid counsel in
finding how the other criteria for withdrawal of a plea could be satisfied. See id.
at 434-44 (discussing factors to be considered).
      Because Minor was represented throughout the pertinent proceedings, he
did not suffer from an absence of counsel. United States v. Cronic, 466 U.S. 648,
658–61, 656 n.19, 104 S. Ct. 2039, 2046–48, 2045 n.19 (1984). The only
potentially meritorious issue arising from this course of events is whether
counsel’s refusal to file the motion was in fact constitutionally deficient and
prejudiced Minor. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). We need not finally resolve that issue in order to conclude that the
judge’s decision, as far as it went, was soundly based. Minor will have to file a
Section 2255 petition in order to explore the ineffectiveness claim properly.
2.    Fair Sentencing Act
      This contention is reviewed for plain error, as the defendant failed to
object to his sentence based on the changes wrought in crack cocaine sentences
under the Fair Sentencing Act, 124 Stat. 2372. However, there is no error,
because Minor’s factual stipulation attending his guilty plea acknowledged his
participation in the conspiracy by distribution of cocaine powder alone (with its
conversion to crack by other defendants).        Further, Minor’s sentence was
actually calculated using only powder cocaine ranges rather than those

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                              No. 12-30247

applicable to crack. The FSA does not apply to sentences involving powder
cocaine.
      For the foregoing reasons, the judgment and sentence are AFFIRMED.




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