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

                                                                 FILED
                                                                March 28, 2008
                               No. 04-31152
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CHARLES STEWART

                                           Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                          USDC No. 2:03-CR-257-15


Before HIGGINBOTHAM, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
      Charles Stewart appeals his guilty plea conviction for conspiracy to
possess with the intent to distribute controlled substances, possession with the
intent to distribute crack cocaine, and use of a telephone in facilitating the
possession offense. Pursuant to his plea agreement, Stewart was sentenced to
20 years of imprisonment, a sentence well below the sentencing range set forth
in the advisory Sentencing Guidelines.



      *
      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should not be published and is not precedent except under the limited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. 04-31152

      Stewart has filed a supplemental pro se brief in which he argues that the
district court abused its discretion by failing to sua sponte order a competency
hearing. He argues that “from indictment to sentencing, the district court was
confronted with information and circumstances which seriously called into
question [his] mental competency and ability to properly assist in his defense.”
      “By accepting the assistance of counsel the criminal appellant waives his
right to present pro se briefs on direct appeal.” United States v. Ogbonna, 184
F.3d 447, 449 n.1 (5th Cir. 1999) (internal quotation and citation omitted).
Because Stewart is represented by counsel on appeal, this court’s previous order
granting Stewart leave to file a pro se supplemental brief is RESCINDED as
improvidently granted, and the supplemental pro se brief is ORDERED stricken
from the record. We note, however, that none of Stewart’s allegations suggest
the sort of impairment that would have rendered him mentally incompetent to
the extent that he was unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense. See United States
v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002).
      Stewart also argues that the district court’s denial of his motion to
withdraw his guilty plea was an abuse of discretion. He argues that the district
court’s reasons for denying the motion are not supported by the record and that
other considerations militated in favor of granting the motion.
      In determining whether a district court has abused its discretion in
denying withdrawal, this court traditionally considers seven relevant factors.
United States v. Grant, 117 F.3d 778, 789 (5th Cir. 1997) (citing United States
v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)). Those factors are: (1) whether the
defendant asserted his innocence; (2) whether withdrawal would prejudice the
Government; (3) whether the defendant delayed in filing the motion to withdraw;
(4) whether withdrawal would inconvenience the court; (5) whether adequate
assistance of counsel was available; (6) whether the plea was knowing and
voluntary; and (7) whether withdrawal would waste judicial resources. Id. No

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single factor is determinative; instead, the court makes its determination based
on the totality of the circumstances. United States v. Badger, 925 F.2d 101, 104
(5th Cir. 1991).
      Stewart’s assertion of innocence is not supported by the record, and his
assertion of a flawed factual basis is without merit. See United Sates          v.
Ramirez-Velasquez, 322 F.3d 868, 880 (5th Cir. 2003) (evidence of an overt act
is not required to prove a drug conspiracy); see also United States v. Adams, 961
F.2d 505, 511-12 (5th Cir. 1992) (any deficiencies in the factual basis are
reviewed for harmless error). In addition, the record fully supports the district
court’s determination that withdrawal of the plea would prejudice the
Government. As noted by the Government at the time Stewart filed his motion
to withdraw, Stewart had 22 co-defendants, all of whom had either been
sentenced or were awaiting sentencing. The district court’s determination that
the motion, filed 73 days after the entry of the plea, was not timely was not
erroneous.   See Carr, 740 F.2d at 345 (delay of 22 days weighed against
withdrawal of the guilty plea).
      With respect to whether Stewart had the assistance of counsel, Stewart’s
counsel acknowledges that a review of the record reveals that trial counsel’s
representation of Stewart was “quite competent and zealous.” Counsel argues,
however, that the district court erred in evaluating this factor because it did so
based on counsel’s “general skills as a lawyer” rather than Stewart’s subjective
belief that counsel was not performing adequately. Counsel cites no authority
which supports his assertion that the assistance of counsel should be viewed
subjectively in determining whether withdrawal of the guilty plea is warranted.
Accordingly, we reject his argument. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984) (counsel’s performance is viewed under an objective standard
of reasonableness).
      With respect to Stewart’s assertion that his plea was not voluntary,
Stewart declared under oath that he was generally satisfied with his counsel’s

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performance. He also declared that he understood the charges and the plea
proceedings. In addition, the district court determined that the initial guilty
plea was credible and that Stewart’s attempt to withdraw the plea was an
attempt to manipulate the proceedings. We do not disturb the district court’s
assessment of Stewart’s credibility.       See Carr, 740 F.2d at 345.      The
Government's motion to supplement the record is GRANTED. The judgment of
the district court is AFFIRMED.




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