     Case: 16-10141       Document: 00513780213         Page: 1     Date Filed: 12/01/2016




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

                                     No. 16-10141                              FILED
                                   Summary Calendar                     December 1, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTOPHER MICHAEL BURGESS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-503-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Christopher Michael Burgess pleaded guilty to possession of child
pornography depicting prepubescent minors, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court imposed a 180-month sentence, based in
part on a four-level “vulnerable victim” sentencing enhancement. U.S.S.G
§ 3A1.1(b). Prior to sentencing, Burgess moved to withdraw his guilty plea,
asserting the plea was not knowing and voluntary.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-10141     Document: 00513780213    Page: 2   Date Filed: 12/01/2016


                                 No. 16-10141

      Burgess challenges that motion’s denial as well as the “vulnerable
victim” sentencing enhancement. The denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion. United States v. Clark, 931 F.2d 292,
294 (5th Cir. 1991).
      The court had broad discretion in deciding whether Burgess had shown
“a fair and just reason” for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B);
United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). The court considered
the factors set forth in Carr and determined, inter alia: Burgess had not
consistently asserted his innocence; his one-year delay in moving to withdraw
was not reasonable; he was closely assisted by counsel prior to his plea; and
the plea was in all other respects knowing and voluntary.           The record
establishes that, under the totality of the circumstances, the court did not
abuse its discretion by denying Burgess’ motion to withdraw the plea. See
Carr, 740 F.2d at 344.
      Burgess concedes that, if his plea is valid, his claim about the
enhancement is barred by the valid appeal waiver contained in his written plea
agreement.    Because the plea is valid, Burgess’ contention about the
“vulnerable victim” enhancement is barred by the appeal waiver. See United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
      AFFIRMED.




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