     Case: 17-10354      Document: 00514741769         Page: 1    Date Filed: 11/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-10354
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    November 29, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

KEILON VIDAL SANDERS, also known as Bird,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:13-CR-295-18


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Keilon Vidal Sanders appeals his conviction for conspiracy to possess
with intent to distribute 1,000 kilograms or more of marijuana. The plea
agreement contained an appeal waiver in which he waived the right to appeal
his conviction and sentence; he retained the right to appeal a sentence
exceeding the statutory maximum term or an arithmetic error, to challenge the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10354

voluntariness of his plea or appeal waiver, and to bring a claim of ineffective
assistance of counsel.
      Sanders asserts that he would not have entered a guilty plea “absen[t]
the erroneous advice of his trial counsel” and that trial counsel erroneously
advised him as to the mandatory minimum sentence. To the extent that he
seeks to raise a claim of ineffective assistance of counsel, the record is not
sufficiently developed to allow fair consideration of his claims, and, therefore,
we decline to consider them without prejudice to any right that Sanders has to
assert them on collateral review. See United States v. Isgar, 739 F.3d 829, 841
(5th Cir. 2014).
      Additionally, Sanders argues that the district court erred by denying his
motion for judgment of acquittal under Federal Rule of Criminal Procedure 29
because he was legally innocent, and filed a motion to supplement the record
on appeal to show that his Rule 29 motion was timely. He argues that the
district court erred by denying his motion to correct his sentence under Federal
Rule of Criminal Procedure 35 and challenges the court’s territorial
jurisdiction. Sanders challenges the district court’s drug quantity finding and
also argues that the district court failed to rule on his PSR objections. The
record, however, shows that the appeal waiver was knowing and voluntary,
making it enforceable. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005). These issues are barred by the appeal waiver, as they do not challenge
a sentence exceeding the statutory maximum, an arithmetic error, the
voluntariness of his plea, or the effectiveness of trial counsel. See United States
v. Keele, 755 F.3d 752,754 (5th Cir. 2014); Bond, 414 F.3d at 544.
      Finally, Sanders argues that he should have been permitted to withdraw
his guilty plea because he is legally innocent.       Because the district court
accepted his guilty plea, Sanders had no absolute right to withdraw it. See



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                                 No. 17-10354

FED. R. CRIM. P. 11(d)(1); compare United States v. Arami, 536 F.3d 479, 483
(5th Cir. 2008).   However, a district court may permit withdrawal before
sentencing if the defendant presents a “fair and just reason.” FED. R. CRIM. P.
11(d)(2)(B). “A district court’s denial of a motion to withdraw a guilty plea is
reviewed for abuse of discretion.” United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003).
      When deciding whether the defendant has shown a fair and just reason
to withdraw the plea, courts consider whether (1) the defendant asserted his
innocence, (2) withdrawal would prejudice the Government, (3) the defendant
delayed in filing the motion, (4) withdrawal substantially inconveniences the
court, (5) close assistance of counsel was available, (6) the plea was knowing
and voluntary, and (7) withdrawal would waste judicial resources. United
States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). It is the defendant’s
burden to establish a fair and just reason for withdrawal. United States v.
Still, 102 F.3d 118, 124 (5th Cir. 1996).
      Although Sanders argues that he is legally innocent based on issues of
jurisdiction and venue, by agreeing to the factual resume supporting his guilty
plea, Sanders admitted that in “the Northern District of Texas” he had
conspired and agreed “to possess with the intent to distribute 1,000 kilograms
or more of marijuana,” which is sufficient to support jurisdiction and venue in
the Northern District of Texas. See United States v. Luton, 486 F.2d 1021,
1022 (5th Cir. 1973). Sanders has failed to demonstrate legal innocence. See
id. With regard to the sixth factor, Sanders has failed to show that his plea
was involuntary or that the district court committed error, plain or otherwise,
in accepting his plea. Given this court’s prior determination that his plea was
knowing and voluntary and given that he has failed to demonstrate legal
innocence, which was his basis for withdrawing his plea, he has not shown that



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                                No. 17-10354

the district court erred by denying his motion to withdraw. See Carr, 740 F.2d
at 344; see also United States v. Sanders, 843 F.3d 1050, 1055 (5th Cir. 2016).
      In light of the foregoing, the district court’s judgment is AFFIRMED.
Sanders’s motions to supplement the record and for judicial notice are
DENIED.




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