     Case: 17-40467      Document: 00514661121         Page: 1    Date Filed: 09/28/2018




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

                                    No. 17-40467                          FILED
                                  Summary Calendar                September 28, 2018
                                                                     Lyle W. Cayce
                                                                          Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

CHARLES FRANCIS HURT,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:15-CR-662-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

       Charles Hurt appeals his conviction and sentence for attempted



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40467    Document: 00514661121     Page: 2   Date Filed: 09/28/2018


                                 No. 17-40467

enticement and coercion of a minor, in violation of 18 U.S.C. § 2422(b),
contending that the district court abused its discretion by denying his motion
to withdraw his guilty plea and by failing to order an evidentiary hearing. A
denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion.
United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). We consider the
totality of circumstances, including seven factors:
   (1) whether or not the defendant has asserted his innocence; (2) wheth-
   er or not the government would suffer prejudice if the withdrawal
   motion were granted; (3) whether or not the defendant has delayed in
   filing his withdrawal motion; (4) whether or not the withdrawal would
   substantially inconvenience the court; (5) whether or not close assis-
   tance of counsel was available; (6) whether or not the original plea was
   knowing and voluntary; and (7) whether or not the withdrawal would
   waste judicial resources.
United States v. Carr, 740 F.2d 339, 343−44 (5th Cir. 1984).

      The record supports the denial of Hurt’s motion based on its considera-
tion of the Carr factors. The rearraignment transcript establishes that the
guilty plea was knowing and voluntary and that Hurt received close assistance
of counsel. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declara-
tions in open court carry a strong presumption of verity.”). Hurt’s assertion of
innocence also followed his admission to the facts alleged in the factual basis
and his plea of guilty, both under oath in open court. See id. A defendant
ordinarily may not “refute [his] testimony given at a plea hearing while under
oath.” United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Fur-
thermore, given that Hurt informed the court of his desire to change his plea
approximately four months after his guilty plea, the finding that the motion
was delayed is not error. See United States v. Thomas, 13 F.3d 151, 153 (5th
Cir. 1994); Carr, 740 F.2d at 345.

      Hurt maintains that the remaining Carr factors—prejudice to the



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                                 No. 17-40467

government, inconvenience to the court, and waste of judicial resources—
weighed in favor of granting the motion to withdraw because there was no
evidence to show that the factors were not satisfied. But an absence of evidence
on these factors is not “sufficient to mandate permission to withdraw a plea
where, as here, no credible reason is proffered.” United States v. Rasmussen,
642 F.2d 165, 168 n.6 (5th Cir. Unit B Apr. 1981). Accordingly, Hurt has failed
to demonstrate that the district court abused its discretion by denying his
motion to withdraw his guilty plea.

      Hurt contends that the district court should have conducted an evidenti-
ary hearing. A decision not to hold an evidentiary hearing on a motion to with-
draw a guilty plea is reviewed for abuse of discretion. United States v. Powell,
354 F.3d 362, 370 (5th Cir. 2003). Although a defendant is not entitled to a
hearing, “a hearing is required when the defendant alleges sufficient facts
which, if proven, would justify relief.” Id. (internal quotation marks and cita-
tion omitted). Hurt does not show that his allegations, if true, would overcome
the strong presumption in favor of the affirmations he made in the plea pro-
ceedings. See Blackledge, 431 U.S. at 74. Thus, the district court did not abuse
its discretion by failing to order a hearing. See Powell, 354 F.3d at 370.

      AFFIRMED.




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