     Case: 10-50135 Document: 00511419294 Page: 1 Date Filed: 03/22/2011




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

                                                 FILED
                                                                           March 22, 2011
                                     No. 10-50135
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PATRICK DANIEL MCLEAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CR-270-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Patrick Daniel McLean pleaded guilty to a one-count information charging
him with receiving child pornography, and he was sentenced to 120 months of
imprisonment and supervised release for life. McLean argues that the district
court erred by not allowing him to withdraw his guilty plea based on the
Government’s undisclosed discovery when the discovery would have likely
resulted in suppression based on the Government’s improper use of an
administrative summons to obtain his internet subscriber records. He argues

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50135

that a prosecutor has a duty to disclose evidence favorable to the defendant
under Brady v. Maryland, 373 U.S. 83 (1963), and he contends that the record
shows that the Government did not provide the administrative summons.
McLean argues that but for the nondisclosure of the summons, he would not
have entered a plea or he would have made a conditional plea reserving the right
to appeal the Government’s improper use of an administrative summons. He
argues that the inability of counsel to present this legal issue of suppression
makes his guilty plea unknowing and involuntary. The Government argues that
the use of an administrative summons was disclosed in the search warrant
affidavit provided to McLean’s former and current counsel, that McLean
knowingly and voluntarily entered into the guilty plea, that his valid guilty plea
prohibits him from raising any issues, other than jurisdictional, that arose before
the guilty plea, and that the district court did not abuse its discretion in denying
McLean’s withdrawal motion.
      Once the district court accepts a defendant’s guilty plea, the defendant has
no absolute right to withdraw his guilty plea. F ED. R. C RIM. P. 11(d); United
States v. Conroy, 567 F.3d 174, 177 (5th Cir. 2009), cert. denied, 130 S. Ct. 1502
(2010); United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). A district court
may grant a motion to withdraw a guilty plea upon a showing of “a fair and just
reason for requesting the withdrawal.” F ED. R. C RIM. P. 11(d)(2)(B). We review
the district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion. Conroy, 567 F.3d at 177.
      To enter a knowing and intelligent plea, the defendant must have “a
full understanding of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 244 (1969). “Rule 11 ensures that a guilty plea is
knowing and voluntary by requiring the district court to follow certain
procedures before accepting such a plea.” United States v. Reyes, 300 F.3d 555,
558 (5th Cir. 2002). McLean has not identified a single deviation from Rule 11
by the district court.

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                                 No. 10-50135

      McLean focuses solely on the sixth Carr factor, whether the plea was
knowing and voluntary. See Carr, 740 F.2d at 343-44. McLean argues that his
guilty plea was not knowing and voluntary because his decision to plead guilty
was based on incomplete information due to the fact that the Government failed
to provide him with the administrative summons, which he argues amounts to
a Brady violation. We assume for argument’s sake that the Government failed
to disclose the requested evidence as alleged.
      “[T]he Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal
defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002). McLean’s guilty
plea precludes him from claiming that the Government’s alleged failure to
disclose the summons was a Brady violation, or from claiming that the use of the
summons was unconstitutional. See Conroy, 567 F.3d at 179 (holding that a
Brady violation is waived by guilty plea); see also United States v. Cothran,
302 F.3d 279, 285-86 (5th Cir. 2002) (noting that a Fourth Amendment claim is
waived by guilty plea). We conclude that McLean’s guilty plea was knowing and
voluntary, as did the district court. See Conroy, 567 F.3d at 179.
      McLean makes no argument concerning the remaining Carr factors.
McLean has never asserted his factual innocence, and an assertion of legal
innocence is not sufficient to warrant withdrawal of a guilty plea. See Carr,
740 F. 2d at 344. McLean pleaded guilty on April 9 and filed his motion to
withdraw on November 9.         The district court found that this was an
unreasonable delay.    This factor depends on whose assertions are credited
concerning when the existence of and use of the administrative summons was
disclosed. The Government argues that McLean had the close assistance of able
counsel. McLean indicated that he was satisfied with May’s representation at
the plea hearing. The district court found that McLean’s original counsel was
extremely competent. McLean makes no argument challenging that finding,
except to the extent that he argues that if the summons had been disclosed to

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May, he could have provided different advice. The Government argues that it
would suffer prejudice and judicial resources would be wasted by having to
entertain a motion to suppress lacking legal merit, as the district court so found.
We need not analyze the merits of the suppression issue to make a
determination on this factor, when consideration of the merits of the
Brady/suppression issue was waived by McLean’s knowing and voluntary guilty
plea.
        The Carr factors weigh against McLean. McLean’s allegations do not
constitute a “fair and just” reason warranting withdrawal of his guilty plea. We
affirm the district court’s denial of McLean’s motion to withdraw his plea based
on alleged undisclosed evidence of a possible Fourth Amendment violation. See
Conroy, 567 F.3d at 178.
        McLean argues that the district court erred by denying his motion for
relief from discovery violations by ruling that the discovery was irrelevant and
thus improperly allowing upward adjustments at sentencing which were based
on the discovery at issue. A district court has the power to regulate discovery,
and if a party fails to comply with the rules governing discovery, the district
court may order the discovery, grant a continuance, or prohibit the party from
introducing the undisclosed evidence. F ED. R. C RIM . P. 16(d)(2). We review a
district court’s order concerning sanctions for discovery violations for an abuse
of discretion. United States v. Garrett, 238 F.3d 293, 297-98 (5th Cir. 2000).
        In its order denying McLean’s motion for relief from discovery violations,
the district court correctly noted that McLean sought exclusion of the
documents, or in the alternative, a continuance of sentencing. The district court
determined that McLean had received the requested evidence and granted a
continuance of sentencing from November 19, 2009, to January 28, 2010. Thus,
the district court denied McLean’s motion for relief from discovery violations as
moot because the requested relief of a continuance had been granted. The
district court did not abuse its discretion. See Garrett, 238 F.3d at 297-98.
        AFFIRMED.

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