     Case: 09-30813     Document: 00511266987          Page: 1    Date Filed: 10/19/2010




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

                                                 FILED
                                                                          October 19, 2010
                                     No. 09-30813
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CLYDE SISTRUNK, also known as Angel Sistrunk,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CR-256-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Clyde Sistrunk appeals his conviction for possession
with intent to distribute 3,4-methylenedioxymethamphetamine (MDMA). He
asserts that he moved to withdraw his guilty plea at the sentencing hearing and
that the district court abused its discretion in failing to hold an evidentiary
hearing on the basis for his request and in denying the motion.
        “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.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30813   Document: 00511266987 Page: 2         Date Filed: 10/19/2010
                                No. 09-30813

2003). Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may
withdraw his plea after the district court has accepted it, but before the
imposition of sentence, if the defendant can show “a fair and just reason for
requesting the withdrawal.” District courts should consider seven factors when
ruling on a motion to withdraw a guilty plea: “(1) whether the defendant
asserted his innocence, (2) whether withdrawal would prejudice the government,
(3) whether the defendant delayed in filing the motion, (4) whether withdrawal
would inconvenience the court, (5) whether adequate assistance of counsel was
available to the defendant, (6) whether the plea was knowing and voluntary, and
(7) whether withdrawal would waste judicial resources.”          United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (citing United States v. Carr, 740
F.2d 339, 343-44 (5th Cir. 1984)).
      Sistrunk does not address the Carr factors.        He never asserted his
innocence; on the contrary, he specifically admitted that he possessed with
intent to distribute 50,000 MDMA pills. Sistrunk has pointed to nothing in the
record to show that his guilty plea was not knowing and voluntary; and we have
held that, to the extent a defendant’s challenge to his plea would necessitate
consideration of evidence outside the record, “a direct appeal is not the proper
avenue for raising such a claim.” United States v. Bell, 966 F.2d 914, 918 (5th
Cir. 1992). In addition, Sistrunk specifically acknowledged at his rearraignment
that he had ample opportunity to discuss his case with his attorney and was
satisfied with his attorney’s services.     The district court did not abuse its
discretion by sentencing Sistrunk despite his expressed desire to withdraw his
guilty plea. See Powell, 354 F.3d at 370; see also Carr, 740 F.2d at 344 (“The
purpose [of allowing withdrawal of a guilty plea] is not to allow a defendant to
make a tactical decision to enter a plea, wait several weeks, and then obtain a
withdrawal if he believes that he made a bad choice in pleading guilty.”).
      To the extent that Sistrunk complains of the district court’s failure to hold
an evidentiary hearing on a motion to withdraw his guilty plea, he has failed to

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                                 No. 09-30813

allege sufficient facts that, if proved, would justify relief. See Powell, 354 F.3d
at 370; see also Bell, 966 F.2d at 916-17 (rejecting a claim that the district court
was required to warn the defendant that his unconditional guilty plea waived his
right to appeal the denial of his speedy trial motion). Furthermore, Sistrunk
specifically disclaims any Sixth Amendment challenge to his attorney’s
performance.
      AFFIRMED.




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