     Case: 15-10181      Document: 00513268914         Page: 1    Date Filed: 11/12/2015




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

                                    No. 15-10181                                FILED
                                  Summary Calendar                      November 12, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICHELE NICKI MYLES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-493-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Richele Nicki Myles appeals the district court’s denial of her motion to
withdraw her guilty plea to possession of a firearm in a federal facility with
intent to commit an assault. Myles argues that she is actually innocent of
intending to commit an assault and that her guilty plea was reluctant. The
Government asserts that Myles’s challenge to the district court’s ruling is
barred because her guilty plea contained a knowing and voluntary waiver of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10181

her right to appeal. Myles counters that challenges to the validity of a guilty
plea cannot be subject to an appeal waiver. Because even an enforceable
appeal waiver does not deprive this court of jurisdiction, we need not decide
whether the waiver in this case bars Myles’s challenge to the district court’s
ruling. See United States v. Story, 439 F.3d 226, 230 (5th Cir. 2006).
      We review a district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003). A district court may permit a defendant to withdraw her guilty plea if
the defendant demonstrates a fair and just reason for doing so. United States
v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998). In determining whether the
defendant has made the requisite showing, the court should consider the seven
factors of United States v. Carr, 740 F.2d 339 (5th Cir. 1984), including whether
she has asserted her innocence, whether she delayed in filing the motion to
withdraw, whether she had the close assistance of counsel during the guilty
plea, and whether the guilty plea was knowing and voluntary. Id. at 343-44.
“We need not parse each Carr factor but instead can look to the totality of the
circumstances.” United States v. McElhaney, 469 F.3d 382, 386 (5th Cir. 2006).
      The record reflects that Myles affirmed repeatedly, both in a signed
stipulation and under oath in court, that she was factually guilty of each
element of the charged offense. In finding Myles’s assertions of innocence
unpersuasive, the district court was entitled to rely on those solemn
declarations over her initial statement to Army investigators that she did not
intend to assault the victim. See United States v. McKnight, 570 F.3d 641, 649
(5th Cir. 2009). In any event, Myles merely “blankly asserts [her] innocence,
providing no facts to support the change of heart.” United States v. London,
568 F.3d 553, 563 (5th Cir. 2009).




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                                 No. 15-10181

      Additionally, Myles waited more than three months after the entry of
her guilty plea to file her motion to withdraw, a fact she has admitted weighs
against her. See, e.g., United States v. Gray, 717 F.3d 450, 451 (5th Cir. 2013).
Myles further concedes that she enjoyed the close assistance of competent
counsel in relation to her guilty plea.     Finally, the transcript of Myles’s
rearraignment reflects that her guilty plea was intelligent, voluntary, and
without equivocation or reticence. See United States v. Reyes, 300 F.3d 555,
558 (5th Cir. 2002).
      Based on the totality of the circumstances, we conclude that the district
court did not abuse its discretion in denying Myles’s motion to withdraw her
guilty plea. See Powell, 354 F.3d at 370. Accordingly, we AFFIRM.




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