     Case: 13-40097      Document: 00512858649         Page: 1    Date Filed: 12/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40097
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 5, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

PERRY JOE WICKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-24-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Perry Joe Wicks appeals his guilty plea conviction of violating 18 U.S.C.
§ 2422(b) by using interstate commerce to knowingly attempt to persuade,
induce, and entice a minor to engage in sexual activity. Wicks expressly denied
having any communication with a minor but admitted that he had email
communications with an adult in an attempt to persuade the adult to provide
Wicks with a minor for sexual activity. To demonstrate a factual basis for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40097

Wicks’s plea, the Government introduced emails between Wicks and an
undercover detective who posed as an adult intermediary who would provide
Wicks with a 14-year-old girl for sexual activity at a hotel in exchange for $ 100.
The arrangement was made, and Wicks was arrested at the hotel.
      First, Wicks contends that his plea was not voluntary and knowing
because he pleaded with the belief that he could present new forensic evidence
on appeal regarding his computer and cellular phone. He asserts that he was
misled at his rearraignment hearing by statements made by the district court
and the Government that promised such an opportunity.
      We review this argument for plain error only because it is raised for the
first time on appeal. See United States v. Hughes, 726 F.3d 656, 659 (5th Cir.
2013). A guilty plea involves the waiver of several constitutional rights and
must be made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238,
242-44 (1969). A guilty plea is involuntary where it was induced by deception,
misrepresentation, or an unfulfillable promise. United States v. Amaya, 111
F.3d 386, 389 (5th Cir. 1997).
      Wicks was not told that he could present additional evidence on appeal.
Instead, the Government stated at his rearraignment hearing merely that his
computer and cellular phone would not be destroyed upon forfeiture and would
be available in the event of an appeal. In pleading guilty, Wicks stated that he
understood he was waiving his right to a trial, including his right to cross-
examine the Government’s witnesses, present his own witnesses, and require
the Government to prove its case beyond a reasonable doubt.            His stated
willingness to waive those rights carries a strong presumption of verity. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Wicks has not shown any error,
much less plain error, on this issue.




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                                 No. 13-40097

      Second, Wicks contends that the district court erred in denying his
motion to withdraw his plea and not granting him a judgment of acquittal. The
district court’s denial of a motion to withdraw a guilty plea is reviewed for
abuse of discretion.   Hughes, 726 F.3d at 659.      After a district court has
accepted a guilty plea, it may grant a motion to withdraw the plea before the
defendant is sentenced if the defendant shows “a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In determining
whether the defendant has met this burden, a court considers whether (1) the
defendant has asserted his innocence, (2) withdrawal would prejudice the
Government, (3) the defendant delayed in filing the motion to withdraw, (4)
withdrawal would inconvenience the court, (5) close assistance of counsel was
available to the defendant, (6) the plea was knowing and voluntary, and (7)
withdrawal would waste judicial resources. United States v. Carr, 740 F.2d
339, 343-44 (5th Cir. 1984).
      The district court found that the first and fourth factors weighed in
Wicks’s favor while the other five factors weighed against him. Wicks does not
brief any argument challenging the district court’s analysis of the five factors
that were counted against him. He has thus waived any such argument. See
United States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002). Instead, Wicks
contends that the district court erred in denying his motion to withdraw his
plea because the factual basis for his plea was insufficient to prove a § 2422(b)
offense. He argues that a § 2422(b) conviction requires at least an attempt to
communicate with a minor, even if only indirectly via an adult intermediary.
      Wicks’s argument is unavailing.      “[A] defendant who communicates
solely with an adult intermediary can be held to violate § 2422(b).” United
States v. Caudill, 709 F.3d 444, 447 (5th Cir.), cert. denied, 133 S. Ct. 2871
(2013).   Wicks attempts to distinguish Caudill on the ground that the



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                                 No. 13-40097

defendant in Caudill sought confirmation that the minor would engage in
sexual activity whereas Wicks did not admit to seeking any such confirmation
when he pleaded guilty. Contrary to Wicks’s contention, the emails introduced
by the Government, without objection by Wicks, show that he asked the adult
intermediary whether the minor would engage in various sexual acts.
Furthermore, Wicks’s online communication with the adult intermediary to
arrange a sexual encounter with a minor was sufficient to violate § 2422(b)
“[w]hether [Wicks] intended to persuade, induce, or entice [the minor] to have
sexual contact when he met [her] at the hotel or he intended for the adult
intermediary to persuade, induce, or entice [her] to have sexual contact with
[Wicks] before he actually appeared at the hotel.” Caudill, 709 F.3d at 446.
Wicks has not shown that the factual basis for his guilty plea was insufficient.
      Last, Wicks complains that his trial counsel failed to conduct a forensic
analysis of Wicks’s computer and did not inform Wicks that the court had
authorized $ 2,400 for the defense to obtain such an analysis. To the extent
Wicks is raising any claims that his trial counsel provided ineffective
assistance, we decline to consider the claims without prejudice to collateral
review because they were not raised in the district court and the record is not
sufficiently developed to allow them to be fairly evaluated. See United States
v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED.




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