     Case: 13-40848       Document: 00512645770         Page: 1     Date Filed: 05/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-40848
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             May 29, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

TREVOR BOUTTE,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:12-CR-249-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Trevor Boutte pleaded guilty to conspiracy to possess, with intent to
distribute, cocaine, as well as possession of a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c) (firearms offense). He
challenges only his conviction for the latter. His guilty plea to the firearms
offense made him ineligible for a reduction below the statutory mandatory-
minimum sentence. He contends the district court erred in accepting his guilty


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-40848

plea to the firearms offense because: the factual basis for his guilty plea was
insufficient; and he denies use of the firearms. (Boutte does not claim the
district court misapplied the Sentencing Guidelines.) Boutte further contends
his guilty plea was not knowing and voluntary because he did not understand
the legal implications of 18 U.S.C. § 924(c).
      Boutte raised these issues in his motion to withdraw his guilty plea and
in his objections to the presentence investigation report (PSR); therefore, these
issues were preserved for review. See, e.g., United States v. Hildenbrand, 527
F.3d 466, 475 (5th Cir. 2008); cf. United States v. Marek, 238 F.3d 310, 315 (5th
Cir. 2001) (en banc). The acceptance of a guilty plea is a factual finding
reviewed for clear error. Hildenbrand, 527 F.3d at 475. On the other hand, a
defendant’s challenge to the legal sufficiency of an undisputed factual basis is
an issue of law, reviewed de novo. See Marek, 238 F.3d at 315; United States
v. Sylvester, 583 F.3d 285, 288 n.4 (5th Cir. 2009). When determining whether
the factual basis for a guilty plea is sufficient, the district court must compare
the conduct which defendant admits and the elements of the offense. Marek,
238 F.3d at 315. The factual basis must be specific enough for the court to
determine defendant’s conduct constituted a crime. United States v. Castro-
Trevino, 464 F.3d 536, 540 (5th Cir. 2006). A PSR may be considered “so long
as the court indicates on the record that it relies on the PSR”. Hildenbrand,
527 F.3d at 475. To support a conviction under 18 U.S.C. § 924(c)(1)(A), the
Government must show defendant used or carried a firearm “during and in
relation to” a drug-trafficking crime or possessed a firearm “in furtherance of
any such crime”. United States v. Cooper, 714 F.3d 873, 877 (5th Cir.), cert.
denied, 134 S. Ct. 313 (2013).
      At the rearraignment hearing, the Government explained the indictment
alleged Boutte knowingly possessed five firearms in furtherance of the drug



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                                  No. 13-40848

conspiracy. Boutte admitted he committed the elements of the firearms offense
and, obviously, his sworn declarations carry a strong presumption of verity.
United States v. Palmer, 456 F.3d 484, 491 (5th Cir. 2006).
      The district court adopted the PSR, which stated: Boutte purchased
large amounts of cocaine from a cooperating defendant between 2006 and 2009;
Boutte contacted the cooperating defendant and asked to buy five kilograms of
cocaine; Boutte met the cooperating defendant in a parking lot and paid him
$147,520; and the cooperating defendant agreed to deliver the cocaine to
Boutte’s house. FBI Agents obtained a search warrant for Boutte’s residence
and found: $30,628 in currency wrapped in plastic bags and dryer sheets in a
safe, along with several firearms; a loaded semiautomatic firearm in Boutte’s
briefcase on the kitchen countertop; a semiautomatic pistol in the bottom
drawer of a nightstand in the master bedroom; and 3.4 grams of cocaine.
      The court found Boutte was in the drug business, he had five firearms in
close proximity to 3.4 grams of cocaine and approximately $30,000 in drug
proceeds. Moreover, four firearms were pistols, one pistol was loaded, and all
were accessible to Boutte. These facts taken as a whole provide a sufficient
factual basis supporting Boutte’s guilty plea for the firearms offense. See, e.g.,
Hildenbrand, 527 F.3d at 475; United States v. Ceballos-Torres, 218 F.3d 409,
412–15 (5th Cir. 2000).
      Finally, Boutte contends the district court erred in denying his motion to
withdraw his guilty plea. “[A] district court may, in its discretion, permit
withdrawal before sentencing if the defendant can show a ‘fair and just
reason’”. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citation
omitted). Defendant “bears the burden of establishing a fair and just reason
for withdrawing his plea”. Id. This court reviews the denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v. McKnight, 570



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F.3d 641, 645 (5th Cir. 2009). “A district court abuses its discretion if it bases
its decision on an error of law or a clearly erroneous assessment of the
evidence.” United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).
      In ruling on a withdraw-guilty-plea motion, the district court considers
seven factors: whether (1) defendant asserted his innocence; (2) withdrawal
would prejudice the Government; (3) defendant delayed in filing his motion;
(4) withdrawal substantially inconveniences the court; (5) close assistance of
counsel was available; (6) the original plea was knowing and voluntary; and
(7) withdrawal wastes judicial resources.      Powell, 354 F.3d at 370 (citing
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984)). The district court
considers the totality of the circumstances in applying these factors, and so,
“[n]o single factor or combination of factors mandates a particular result”.
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      Boutte’s vague assertion of innocence, without identifying any specific
evidence to support his claim, is insufficient to show the district court erred in
denying his motion. See, e.g., United States v. Bond, 87 F.3d 695, 701 (5th Cir.
1996). Moreover, the court correctly determined: Boutte delayed in filing the
motion to withdraw his plea; he had close assistance of an experienced defense
attorney at the time he entered his plea; his plea was knowing and voluntary;
and the withdrawal of Boutte’s guilty plea would prejudice the Government
and waste judicial resources, though it would not inconvenience the court. See
United States v. London, 568 F.3d 553, 563–64 (5th Cir. 2009); United States
v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994); McKnight, 570 F.3d at 646–47.
      Boutte has not shown the district court’s findings were based on clearly
erroneous assessments of the evidence. See, e.g., United States v. Hughes, 726
F.3d 656, 662–63 (5th Cir. 2013). Considering the totality of the Carr factors,




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the great majority of which weighed against Boutte, the district court did not
abuse its discretion in denying Boutte’s motion to withdraw his guilty plea.
      AFFIRMED.




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