                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 11, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 05-51337
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

STEVEN DALE SHANKLIN,

                                     Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                     USDC No. 1:05-CR-64-ALL
                       --------------------

Before DAVIS, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Steven Dale Shanklin appeals his guilty-plea conviction and

sentence for tax evasion.   He has filed a motion for release

pending appeal and a motion for expedited consideration of his

motion for release pending appeal.

     Shanklin argues that the district court abused its

discretion by denying his motion to withdraw guilty plea.        For

the first time in his reply brief, he maintains that the district




     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-51337
                                 -2-

court erred by allowing him less than two minutes to present

argument in support of his motion to withdraw guilty plea.

     Shanklin did not unequivocally assert his innocence when

arguing his motion to withdraw guilty plea and, at rearraignment,

Shanklin unequivocally admitted, under oath, that he was guilty

and that his plea was knowing and voluntary.   See United States

v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (citation

omitted) (strong presumption of validity to declarations under

oath in open court).   Additionally, Shanklin waited until the day

of the second sentencing hearing, more than four months after the

entry of his guilty plea, to move to withdraw the guilty plea.

See United States v. Grant, 117 F.3d 788, 790 (5th Cir. 1997)

(withdrawal of guilty plea at sentencing inconveniences court and

wastes judicial resources).   Given the totality of the

circumstances, Shanklin has not shown that the district court

abused its discretion by denying his motion to withdraw guilty

plea.**   See United States v. Powell, 354 F.3d 362, 370 (5th Cir.

2003).

     For the first time on appeal, Shanklin argues that the

district court plainly erred by denying his motion to withdraw

guilty plea because he did not waive his right to a jury trial in

writing as required by FED. R. CRIM. P. 23(a)(1).   Because


     **
       We do not consider Shanklin’s assertion that he was not
given enough time to present argument in support of his motion to
withdraw guilty plea because it was raised for the first time in
his reply brief. See United States v. Prince, 868 F.2d 1379,
1386 (5th Cir. 1989).
                             No. 05-51337
                                  -3-

Shanklin did not raise this issue below, we review for plain

error.   See United States v. Hull, 160 F.3d 265, 271 (5th Cir.

1998).    Shanklin’s guilty plea waived his right to a trial by

jury.    See United States v. Robertson, 698 F.2d 703, 707 (5th

Cir. 1983).    Thus, Shanklin was not “entitled to a jury trial”

and the requirement that a jury trial waiver be in writing was

inapplicable.    See FED. R. CRIM. P. 23(a).   Accordingly, the

district court did not commit error under FED. R. CRIM. P. 23(a),

plain or otherwise, by denying Shanklin’s motion to withdraw

guilty plea.

     For the first time on appeal, Shanklin argues that the

district court plainly erred by denying his motion to withdraw

guilty plea because his plea agreement contained a binding

sentencing recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(C)

and the district court allegedly violated FED. R. CRIM. P.

11(c)(5)(B) by rejecting the agreement without allowing him the

opportunity to withdraw his guilty plea.       Alternatively, Shanklin

maintains that if the sentencing recommendation was non-binding

pursuant to FED. R. CRIM. P. 11(c)(1)(B), the district court

plainly erred by not advising him at rearraignment that he had no

right to withdraw his guilty plea if it did not follow the

recommendation as required by FED. R. CRIM. P. 11(c)(3)(B).

     The stipulation between Shanklin and the Government

regarding the total tax loss under U.S.S.G. §§ 2T1.1 and 2T4.1

specifically stated that it was not binding on the district
                            No. 05-51337
                                 -4-

court.   Accordingly, the recommendation was a non-binding

recommendation pursuant to FED. R. CRIM. P. 11(c)(1)(B).

     At rearraignment, the district court did not advise Shanklin

that he had no right to withdraw his guilty plea if it did not

follow the recommendation in the plea agreement as required by

FED. R. CRIM. P. 11(c)(3)(B).   Because Shanklin did not raise any

objections during rearraignment, we review for plain error.       See

United States v. Vonn, 535 U.S. 55, 59 (2002).    At rearraignment,

the district court advised Shanklin that the Guidelines were

advisory and that he could receive a sentence as high as the

statutory maximum.   Furthermore, the plea agreement clearly

stated that the recommendation was not binding.    Thus, the

district court’s error could not have materially affected his

decision to plead guilty and was not plain error.    See United

States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en banc).

     For the first time on appeal, Shanklin argues that the

district court’s denial of his motion to withdraw guilty plea

violated his Fifth Amendment right to due process and his Sixth

Amendment right to a jury trial.    We review this contention for

plain error.   See Hull, 160 F.3d at 271.   The Fifth Amendment did

not bar Shanklin’s guilty plea, and Shanklin did not have an

absolute right to withdraw his guilty plea.    See Brady v. United

States, 397 U.S. 742, 753 (1970) (Fifth Amendment does not bar

guilty pleas); Powell, 354 F.3d at 370 (no absolute right to

withdraw guilty plea).   Shanklin’s Sixth Amendment right to a
                            No. 05-51337
                                 -5-

jury trial was waived by his guilty plea.     See Robertson, 698

F.2d at 707.

     Shanklin argues that the district court erred by denying his

request to represent himself at sentencing.    A criminal defendant

has a Sixth Amendment right to represent himself as well as a

statutory right.   Faretta v. California, 422 U.S. 806, 819-34

(1975); 28 U.S.C. § 1654.   The district court’s ruling on

Shanklin’s self-representation request, however, was ambiguous,

and the district court allowed Shanklin to conduct his own

defense at sentencing.   Shanklin’s counsel remained present to

consult with Shanklin if Shanklin requested and did not interject

anything into Shanklin’s defense against his will.    At most, the

district court required Shanklin’s counsel to function as standby

counsel against Shanklin’s wishes, and this did not violate

Shanklin’s right to represent himself.     See McKaskle v. Wiggins,

465 U.S. 168, 184 (1984).

     Shanklin argues that he received ineffective assistance of

counsel in the district court.   Although Shanklin argued, in

support of his motion to withdraw guilty plea and his request to

represent himself, that his counsel had been ineffective, neither

Shanklin nor his counsel testified under oath regarding

Shanklin’s ineffective-assistance allegations.    Furthermore, the

district court did not make any factual findings on the

allegations.   Because the record is not sufficiently developed

for this court to consider Shanklin’s ineffective assistance of
                           No. 05-51337
                                -6-

counsel claim, we deny the claim without prejudice to Shanklin’s

right to raise it in a motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255.    See United States v.

Kizzee, 150 F.3d 497, 502-03 (5th Cir. 1998).   We express no view

on the merits of such a motion.

     Shanklin raises numerous procedural and substantive

challenges to his sentencing and the sentence imposed.    Because

Shanklin did not raise his procedural challenges below, we review

for plain error.   See United States v. Jones, 444 F.3d 430, 443

(5th Cir.), cert. denied, __ S. Ct. __, 2006 WL 1523778 (June 26,

2006) (No. 05-11153).   Although the district court and the

Government discussed the terms of the plea agreement at the first

sentencing hearing, nothing in the record indicates that the

district court misrepresented the terms of the plea agreement or

held any incorrect views regarding those terms.   While the

district court speculated at the second sentencing hearing that

Shanklin may have money hidden away, it specifically stated that

this possibility did not factor into its sentencing decision.

Shanklin does not indicate which disputed matters he asserts the

district court did not rule upon at sentencing in violation of

FED. R. CRIM. P. 32(i)(3)(B), and nothing in the record indicates

that the district court did not rule upon all disputed matters.

Accordingly, Shanklin has not shown that the district court

committed error, plain or otherwise, for these reasons.
                           No. 05-51337
                                -7-

     Contrary to Shanklin’s assertion, FED. R. CRIM. P. 32(h)

requires only that the parties receive reasonable notice that the

court is considering a departure from the guidelines sentence

range and the reason for the possible departure, not that written

notice be provided.   Although the district court did give notice

that it was considering a sentence above the guidelines range at

the first sentencing hearing, it arguably did not give notice of

the specific grounds upon which it was considering imposing such

a sentence.   However, assuming arguendo that the district court

violated FED. R. CRIM. P. 32(h), Shanklin has not shown that this

constituted plain error because he has not demonstrated how the

lack of sufficient notice prejudiced him or how he would have

responded differently had he been given proper notice.   See

Jones, 444 F.3d at 443.

     Shanklin’s uncontested guidelines sentence range was 15-21

months of imprisonment and the district court made an upward

deviation to the statutory maximum of 60 months of imprisonment

pursuant to the discretion granted to it in United States v.

Booker, 543 U.S. 220 (2005).   The district court based its upward

deviation on the following fact-specific reasons: Shanklin’s

intelligence and his deliberate ignorance regarding the payment

of taxes; that Shanklin signed false withholding forms under

penalty of perjury; Shanklin’s failure to show remorse beyond the

remorse about his pending incarceration; that Shanklin did not

file tax returns in 2002, 2003, and 2004, even though he was
                           No. 05-51337
                                -8-

already under investigation for tax evasion; and that a sentence

within the guidelines range would be insufficient deterrence

given the amount of taxes Shanklin failed to pay.   These factors

were proper to consider as they related to “the nature and

circumstances of the offense and the history and characteristics

of the defendant,” the seriousness of the offense, and the need

to provide adequate deterrence.   18 U.S.C. § 3553(a)(1),

(a)(2)(A), and (a)(2)(B); see also United States v. Smith, 440

F.3d 704, 709 (5th Cir. 2006).

     While the district court did consider Shanklin’s income,

this was in the context of the amount of taxes Shanklin failed to

pay and thus was consideration of Shanklin’s offense, not

impermissible consideration of Shanklin’s socio-economic status,

a prohibited factor under U.S.S.G. § 5H1.10.   At worst, the

district court’s language was imprecise, and Shanklin has not

shown that the district court’s upward deviation was

impermissibly based upon his socio-economic status.    Cf. United

States v. Humphrey, 104 F.3d 65, 71-72 (5th Cir. 1997)

(commenting about amount of money defendants obtained by fraud

and their inability to pay restitution did not clearly indicate

that district court considered socio-economic status of

defendants).   Shanklin has not shown that the district court’s

decision to make an upward deviation from the guidelines range

was unreasonable.   See Smith, 440 F.3d at 709.
                            No. 05-51337
                                 -9-

     This court has recently noted that the extent of a deviation

is “of no independent consequence.”    Id. at 709 n.5 (internal

quotation marks omitted).   Furthermore, given Shanklin’s history

and characteristics, the seriousness of his offense conduct, and

the need for deterrence as found by the district court, the

extent of the deviation was not unreasonable.    See

id. (collecting cases); United States v. Reinhart, 442 F.3d 857,

864 (5th Cir. 2006) (upward deviation from 151 months to 235

months is not presumptively unreasonable).

     By rendering the Sentencing Guidelines advisory only, Booker

eliminated the Sixth Amendment concerns that prohibited a

sentencing judge from finding all facts relevant to sentencing.

United States v. Johnson, 445 F.3d 793, 797-98 (5th Cir.), cert.

denied,      S. Ct.   , 2006 WL 1584471 (June 12, 2006) (No. 05-

10908); Mares, 402 F.3d at 519.    Thus, contrary to Shanklin’s

assertion, while the district court based Shanklin’s sentence on

facts not proven to a jury or admitted by Shanklin, this was not

erroneous.    See Johnson, 445 F.3d at 797-98.

     Shanklin’s ex post facto argument is without merit.    The

application of the Sentencing Guidelines as merely advisory does

not violate the Ex Post Facto Clause, even if the offense conduct

occurred prior to Booker.    United States v. Scroggins, 411 F.3d

572, 575-76 (5th Cir. 2005); United States v. Austin, 432 F.3d

598, 599-600 (5th Cir. 2005).
                             No. 05-51337
                                 -10-

     Using Rummel v. Estelle, 445 U.S. 263 (1980), as a

benchmark, Shanklin’s sentence of 60 months of imprisonment for

evading more than $400,000 in taxes was not “grossly

disproportionate.”     See United States v. Gonzales, 121 F.3d 928,

943 (5th Cir. 1997).    Thus, the sentence did not violate the

Eighth Amendment’s prohibition against cruel and unusual

punishment.   See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th

Cir. 1996).

     AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED AS MOOT;

MOTION FOR EXPEDITED CONSIDERATION OF MOTION FOR RELEASE PENDING

APPEAL DENIED AS MOOT.
