     Case: 13-60404      Document: 00513106498         Page: 1    Date Filed: 07/07/2015




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

                                    No. 13-60404
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                              July 7, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

WALTER HAMPTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11-CR-169


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       The Defendant-Appellant, Walter Hampton, pled guilty pursuant to a
written plea agreement to Counts 1 and 3 of a three-count indictment. He was
sentenced to 205 months and filed a timely notice of appeal. The attorney
appointed to represent Hampton on appeal has moved for leave to withdraw
and has filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). We have
reviewed counsel’s brief and the relevant record reflected therein. We disagree

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60404

with counsel’s assessment that the appeal presents no non-frivolous issue for
appellate review. For the following reasons, we find that the district court may
have committed reversible error when it accepted Hampton’s guilty plea as to
Count 3 of the indictment and, relatedly, may have abused its discretion in
denying his motion to withdraw his guilty plea.
      At his rearraignment hearing, Hampton initially denied guilt as to
Count 3.       Ultimately, however, after he was provided with multiple
opportunities to confer with his attorney, he pled guilty to both Counts 1 and
3 in accordance with the plea agreement.        Hampton thereafter moved to
withdraw his guilty plea and testified at the hearing on the motion to withdraw
that his attorney told him that his only options were to (1) sign the plea
agreement and plead guilty to both Counts 1 and 3 or (2) go to trial on both
Counts. At this hearing, the attorney confirmed that he told Hampton that his
options were to sign the plea agreement (and plead guilty to both Counts 1 and
3) or go to trial.
      “The longstanding test for determining the validity of a guilty plea is
whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” Hill v. Lockhart, 474 U.S.
52, 56 (1985). Because Hampton may have acted under the misunderstanding
that his options were limited to either pleading guilty to both Counts 1 and 3
or going to trial on both Counts, the district court may have abused its
discretion in finding that the plea to Count 3 was entered knowingly and in
denying Hampton’s motion to withdraw the plea. See United States v. Neal,
509 F. App’x 302, 306, 308 (5th Cir. 2013) (unpublished) (holding that the
district court abused its discretion in denying the defendant’s motion to
withdraw his guilty plea in part because the court “arguably gave the
(incorrect) impression that [the defendant’s] choice was binary—that he could


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                                 No. 13-60404

either plead guilty to all charges or go to trial on all charges”). Without
expressing any opinion as to the ultimate merit of his claims, we conclude that
Hampton’s possible misunderstanding of his plea options presents non-
frivolous arguments regarding the validity of his guilty plea.
      Accordingly, it is ordered that counsel’s motion for leave to withdraw as
counsel is denied. It is further ordered that counsel fully brief the merits of
the claims that (1) Hampton’s plea to Count 3 of the indictment was not
knowing and voluntary, and (2) that the district court abused its discretion
when it denied his motion to withdraw his guilty plea to Count 3.
      MOTION DENIED. ANDERS BRIEF STRICKEN.




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