     Case: 15-50814      Document: 00513790446         Page: 1    Date Filed: 12/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-50814                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 8, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

GERALD LEE VERGOTT, also known as Jerry Vergott, also known as
Blacky, also known as Gerald L. Vergott, also known as Gerald Vergott,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-484-1


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant, Gerald Vergott, was charged with one count of
being a felon in possession of a firearm. He filed a motion to suppress evidence
that was seized from his vehicle during a traffic stop. Following a hearing, the
district court denied Vergott’s motion to suppress. The district court
subsequently filed a written Finding of Fact and Order on the motion to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50814
suppress; Vergott objected; and the district court rejected Vergott’s objections.
He then entered a guilty plea. Two weeks later, Vergott moved to withdraw his
guilty plea. Following a hearing, the district court held Vergott’s motion in
abeyance to allow him an opportunity to prove that his underlying prior
conviction of burglary of a building was not a felony offense that could support
the charge of felon in possession of a firearm. 1 The record reflects that the
district court never formally ruled on defendant’s motion to withdraw his guilty
plea, but the court imposed five years of supervised probation. Vergott appeals.
We AFFIRM.
                                              I.
                                          FACTS
      Vergott was driving when police officers observed him fail to signal
properly while turning into a parking lot. Texas Transportation Code §
545.104(b) requires a driver to signal his intent to turn for at least 100 feet
before making a turn. One of the officers testified that during the traffic stop
he observed a firearm in plain view, tucked into Vergott’s front waistband
while he was making furtive movements.
      Vergott filed a motion to suppress based on the argument that, because
he properly signaled that he was turning for the required 100 feet before the
turn, the officers lacked probable cause to stop him. At a hearing on the motion,
both parties adduced evidence in attempts to establish the distance at which
Vergott had activated his turn signal prior to the turn. The district court
stated, “giving the extreme benefit of the doubt to the defense, . . . [it] would be
the 108 or 110 line, which . . . would be more than a hundred feet.” The district
court then denied the motion to suppress. The government filed a motion for
clarification of the court’s factual findings because of inconsistencies, and the


      1   According to Vergott, he was charged with a felony, but convicted of a misdemeanor.
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                                       No. 15-50814
district court responded with a written Finding of Fact and Order. The court
found that Vergott had activated his turn signal less than 100 feet before
making the turn and denied the motion to suppress. Vergott objected to the
Finding of Fact and Order and asked that the findings be conformed to the
court’s oral statements. That objection was denied, and he now appeals the
denial of his motion to suppress. He contends that he entered a conditional
guilty plea, thereby reserving his right to appeal the denial of his motion to
suppress evidence.
       As noted, Vergott entered a guilty plea following the denial of his motion
to suppress, but two weeks later moved to withdraw his guilty plea, claiming
that he was actually innocent and that his plea was not voluntary because his
counsel “coerced” him into entering a plea and he was under the influence of
medication. 2 The district court held a hearing on the motion to withdraw the
guilty plea, but agreed to hold the motion in abeyance to give Vergott time to
disprove the government’s assertion that he had been convicted of a felony.
Two months later, the district court sentenced Vergott to five years of
supervised probation. The court did not formally rule on the motion to
withdraw the guilty plea. Vergott appeals the denial of his motion to withdraw
the guilty plea.
                                             II.
                                       ANALYSIS
   A. Right to Appeal the Motion to Suppress
       This court reviews a district court’s factual findings on a motion to
suppress for clear error and its conclusions of law de novo. 3 Our authority to


       2  Vergott claims that he takes prescription hydrocodone for pain and Xanax for
anxiety, and that he took more Xanax than usual on the date of the rearraignment in an
effort to overcome his anxiety of appearing in court.
        3 United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015); United States v.

Hernandez, 647 F.3d 216, 218 (5th Cir. 2011).
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review the district court’s ruling on the motion to suppress depends on whether
Vergott entered a conditional plea of guilty. An erroneous pretrial evidentiary
ruling – here, the denial of a motion to suppress – is a nonjurisdictional defect
that is waived by an unconditional plea. 4 But a defendant may enter a
conditional plea of guilty pursuant to Rule 11(a)(2) of the Federal Rules of
Criminal Procedure and thereby reserve the right to challenge a pretrial
ruling. 5 A conditional guilty plea may not be implied, but “must be made in
writing, consented to by the prosecution, and approved by the court.” 6
       Nevertheless, in appropriate circumstances, this court has relaxed the
technical requirements of Rule 11(a)(2) “when the spirit of that rule has been
fulfilled by a clear indication on the record of the defendant’s intention to plead
conditionally . . . [and an] intention to appeal particular pretrial rulings, and
the acquiescence of both the prosecution and the court.” 7 We have found a
conditional plea was present without a written agreement when the record
clearly indicated that defendant expressly sought to reserve his right to appeal
a pretrial ruling and neither the government nor district court opposed such a
plea. 8 On the other hand, “if the record contains no manifestation of a
reservation of appellate rights, the plea is presumptively unconditional, and
an appellate court may not reach the merits of the defendant’s appeal.” 9
       Vergott concedes that he entered a plea of guilty without a written plea
agreement and cannot meet the formal requirements for a conditional guilty



       4 See United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007); United States v. Wise,
179 F.3d 184, 186 (5th Cir. 1999).
       5 See Stevens, 487 F.3d at 238.
       6 Wise, 179 F.3d at 186; see also FED. R. CRIM. P. 11(a)(2).
       7 Wise, 179 F.3d at 187.
       8 United States v. Santiago, 410 F.3d 193, 197-98 (5th Cir. 2005); Wise, 179 F.3d at

187; United States v. Fernandez, 887 F.2d 564, 566 n.1 (5th Cir. 1989); see also FED. R. CRIM.
P. 11(h).
       9 United States v. Bell, 966 F.2d 914, 917 (5th Cir. 1992) (emphasis in original).

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plea. He nevertheless contends that the record shows his clear intent to appeal
the ruling on the motion to suppress, as well as acquiescence on the part of
both the district court and government. The first statements that Vergott relies
on to show that the record is clear that he intended to appeal the motion to
suppress are comments made by his attorney at a pretrial hearing to the effect
that the record was “clear” and the district court’s ruling on the motion to
suppress “appellate ready.” However, those remarks were made two months
prior to Vergott’s guilty plea. Moreover, they do not indicate any reservation of
a right to appeal the motion to suppress because they were made at a point
during the case when there was no need to reserve the right to appeal.
      Defendant also relies heavily on the following exchange between the
parties and the district court at his sentencing hearing:
      THE COURT: And, of course, the Court had looked at the legal
      motion earlier in this process, and that was resolved against you.
      But the Court advised you that you could retain your right to
      appeal that legal decision. Are you still willing to go forward with
      your plea of guilty and waive your appellate rights on that legal
      issue?

      [COUNSEL FOR DEFENSE]: Your Honor, if I may approach the
      Court on that issue, if Mr. Fuchs wouldn’t mind just approaching
      for a second.

      THE COURT: Okay. All right. Come on up.

      (At bench off the record)
      (Open court)
      THE COURT: All right. Mr. Vergott, come on back up. So the Court
      is informed you may want to pursue the ruling on the legal issue.
      And that’s fine if you do. But what we’re here today about is your
      sentence.

Vergott asserts that this exchange supports his contention that the
government and district court did not object to his reservation of the right to
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                                  No. 15-50814
appeal the denial of the suppression motion. However, the record does not
clearly show that the court was referring to the “legal decision” denying
defendant’s motion to suppress, as opposed to other legal decisions, including
his motion to withdraw the guilty plea.
      In addition, at Vergott’s rearraignment, the district court clearly
indicated that his guilty plea was not conditional:
      THE COURT: All right. And, of course, I remember this case,
      among other reasons, because there was the hearing on the motion
      to suppress. And, of course, in those instances the defendant
      certainly has the choice to go to trial or to enter a conditional plea
      and appeal the Court’s ruling on the motion to suppress.

      But this is without the conditions; is that correct?

      [COUNSEL FOR DEFENSE]: Yes, Your Honor. Mr. Vergott would
      retain the right to appeal the sentence. But that’s right.

      THE COURT: All right. And have you explained all of those
      different options to him?

      [COUNSEL FOR DEFENSE]: I have.

      THE COURT: All right. And, Mr. Vergott, do you understand all
      those different options?

      DEFENDANT: Yes, sir.

Following this exchange, the district court notified Vergott of the constitutional
rights he was waiving by entering a plea of guilty. Vergott nevertheless
proceeded to enter a plea of guilty.
      Cases in which this court has excused technical compliance with Rule
11(a)(2) differ from this case. For example, in United States v. Santiago, we
ruled that the guilty plea was conditional because the defendant expressly




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                                       No. 15-50814
reserved his right to appeal a motion to suppress at his rearrraignment. 10 In
United States v. Fernandez, the defendant’s guilty plea was conditional
because the government conceded on appeal that the defendant had reserved
the right to appeal from an adverse pre-plea suppression ruling. 11 In the
instant case, however, Vergott did not expressly reserve his right to appeal the
motion to suppress; on the contrary, he expressly waived the right to condition
his guilty plea. Counsel for Vergott clearly indicated that Vergott’s plea was
without conditions on which he could appeal the motion to suppress. The plea
entered by Vergott was thus not conditional, so he has no right to appeal the
ruling on the motion to suppress.

   B. Withdrawal of Guilty Plea

       The denial of a motion to withdraw a guilty plea is reviewed for abuse of
discretion. 12 Vergott moved to withdraw his guilty plea, alleging that he was
actually innocent, that he was pressured into pleading guilty, and that his
thinking was impaired by his medication. The district court implicitly denied
Vergott’s motion to withdraw his guilty plea when it entered final judgment
imposing a sentence of five years of supervised probation. 13 There is no



       10 410 F.3d at 197-98.
       11 887 F.2d at 566 n.1.
       12 United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009).
       13 Although there is no indication in the record that the district court ever formally

ruled on Vergott’s motion to withdraw his guilty plea, this court has previously recognized in
other circumstances that “the denial of a pending motion may be implied by the entry of final
judgment.” United States v. Jasso, 634 F.3d 305, 307 n.2 (5th Cir. 2011). Cf. Norman v.
Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) (“The denial of a motion by the district court,
although not formally expressed, may be implied by the entry of a final judgment or of an
order inconsistent with the granting of the relief sought by the motion.”). Here, the district
court held an evidentiary hearing on Vergott’s motion, during which the court considered
each of the seven factors relevant to the review of a motion to withdraw a guilty plea. See
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). At the conclusion of the hearing,
the district court determined that it should hold the motion in abeyance to provide Vergott
with the opportunity to seek, in Texas state court, a modification of his criminal record to
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absolute right to withdraw a guilty plea if the defendant did not seek
withdrawal before the district court accepted the guilty plea. 14 A defendant
may withdraw a guilty plea that the district court accepted prior to his
sentence if “the defendant can show a fair and just reason for requesting the
withdrawal.” 15 “The burden of establishing a fair and just reason for
withdrawing a guilty plea remains at all times on the defendant.” 16
       This court has articulated seven factors that are relevant to considering
whether a fair and just reason for withdrawal of a defendant’s guilty plea
exists. 17 Those seven factors are: (1) whether the defendant has asserted actual
innocence; (2) whether the government would suffer prejudice if the
withdrawal motion were granted; (3) whether the defendant has delayed in
filing the withdrawal motion; (4) whether withdrawal would substantially
inconvenience the court; (5) whether close assistance of counsel was available;
(6) whether the original plea was knowing and voluntary; and (7) whether
withdrawal would waste judicial resources. 18
       Vergott contends that he is actually innocent because he was never
convicted of a felony to support the charge of felon in possession of firearm. An
assertion of innocence alone is “far from being sufficient to overturn denial of
a   withdrawal       motion.” 19    As    the   district    court    noted,    at   Vergott’s


reflect his claim that his state burglary conviction was a misdemeanor, rather than a felony.
The court made clear that if Vergott was unsuccessful, his options were to “be sentenced
based on the plea that [he had] already entered” or “to reurge [his] motion and . . . go forward
with trial.” The court went on to set a date for sentencing. Vergott apparently never availed
himself of this opportunity and did not raise the issue at sentencing, nor did he reurge his
motion to withdraw his guilty plea. Under these circumstances, we conclude that the court
implicitly denied Vergott’s motion to withdraw his guilty plea upon entering a final judgment
imposing a sentence of five years of supervised probation.
        14 See United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008).
        15 FED. R. CRIM. P. 11(d)(2)(B).
        16 United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
        17 United States v. Urias-Marrufo, 744 F.3d 361, 364 (5th Cir. 2014).
        18 Carr, 740 F.2d at 343-44.
        19 Id. at 344.

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rearraignment, he admitted that he possessed a firearm and that he was
“previously convicted of a felony.” “[S]olemn declarations in open court carry a
strong presumption of verity.” 20 The court also held Vergott’s motion in
abeyance to give him the opportunity to disprove the government’s assertion
that his prior conviction was a felony conviction sufficient to serve as a
predicate for conviction under § 922(g). The district court’s implied denial of
Vergott’s motion demonstrates that he failed to do so. Vergott’s blanket
assertion that he was not convicted of a felony is not enough for this factor to
weigh in favor of withdrawing his guilty plea.
      As to the second factor, the district court found that there was no
“great prejudice” to the government if withdrawal were to be permitted, and
the government did not dispute this finding. This factor thus weighed in favor
of withdrawal of the guilty plea. With respect to the third factor, Vergott filed
his motion to withdraw his guilty plea two weeks after entering that plea. The
district court found there was no delay, so this factor weighed in favor of
withdrawal of the guilty plea. The district court found the fourth factor
weighed in favor of withdrawal of the guilty plea because the court would not
be substantially inconvenienced. The fifth factor weighed against withdrawal
of the guilty plea because the district court found that defendant did receive
close assistance of counsel.
      With respect to the sixth factor, Vergott insists this his plea was not
knowing and voluntary. He asserts that during the plea colloquy the district
court confused him about the nature of the charge by asking whether he had a
“burglary charge” instead of “being convicted of a felony.” Vergott maintains
that he was unaware that his burglary charge constituted a felony, so he never
admitted during the plea colloquy to having a prior felony conviction. Vergott


      20   See United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001).
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further contends that he was under the influence of his medication and
pressure of his attorney, further rendering his guilty plea involuntary.
      To enter a knowing and voluntary guilty plea, a defendant must have
full knowledge of what the plea connoted and of its consequences. 21 Rule 11 of
the Federal Rules of Criminal Procedure ensures that a guilty plea is knowing
and voluntary by requiring the district court to follow specific procedures
before accepting such a plea. 22 The district court substantially complied with
Rule 11 by informing Vergott of the nature of the charge alleged in the
indictment, the constitutional rights he was waiving by pleading guilty, and
the maximum possible sentence he faced. 23 Contrary to Vergott’s assertion, he
expressly admitted to having “previously been convicted of a felony” at the
rearraignment hearing. The fact that he admitted to being convicted of a
burglary in a different part of the rearraignment does not mean that he did not
have full knowledge of what his plea connotes and of its consequences. The
district court also recounted facts from the suppression hearing as a factual
basis for Vergott’s plea and ensured that he was not pleading guilty because
someone had “forced . . . threatened,” or promised him something in exchange
for his guilty plea. 24 Vergott’s assertion that his medication and his attorney’s
advice rendered his guilty plea involuntary are conclusional and insufficient to
rebut his sworn statements in court. 25 This factor thus weighed against the
withdrawal of his guilty plea.
      As to the final factor, the district court concluded that withdrawal of the
guilty plea would not result in a terrible waste of judicial resources. This factor
thus weighed in favor of withdrawing the guilty plea.


      21 Boykin v. Alabama, 395 U.S. 238, 244 (1969).
      22 FED. R. CRIM. P. 11.
      23 FED. R. CRIM. P. 11(b)(1).
      24 FED. R. CRIM. P. 11(b)(2 ) & (3).
      25 See Lampazianie, 251 F.3d at 524.

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      Based on the totality of the circumstances, Vergott has failed to show
that the district court abused its discretion in denying his motion to withdraw
his guilty plea.
                                     III.
                               CONCLUSION
      The district court’s ruling is, in all respects, AFFIRMED.




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