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

                                                FILED
                                                                 February 26, 2009
                                No. 08-30771
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

BRANDON BARKSDALE

                                            Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:07-CR-52-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Brandon Barksdale pleaded guilty to all five counts of his superseding bill
of information: conspiracy to possess with intent to distribute at least 500 grams
but not more than 1.5 kilograms of cocaine base (Count 1); possession with
intent to distribute a quantity of 3,4 methylenedioxmethamphetamine (Count
2); using, carrying, and discharging a firearm in relation to a drug trafficking
crime (Count 3); possession with intent to distribute 50 grams or more of cocaine



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30771

base (Count 4); and possession of a firearm by a convicted felon (Count 5).
Nearly eight months after the district court accepted Barksdale’s plea and about
two and a half months after issuance of his presentence report, Barksdale moved
to withdraw his guilty plea as to Count 3. The district court heard the motion
immediately before Barksdale’s sentencing and denied the motion.
      Barksdale argues that his guilty plea was involuntary due to ineffective
assistance by his trial counsel and that his trial counsel also provided ineffective
assistance during the hearing on Barksdale’s motion to withdraw his guilty plea.
Barksdale’s plea agreement contained a waiver of appeal, but Barksdale
contends that the waiver does not bar review of his instant claims. A defendant
may always avoid a waiver of appeal on the limited grounds that the waiver or
guilty plea itself was tainted by ineffective assistance of counsel. United States
v. White, 307 F.3d 336, 339, 343 (5th Cir. 2002) (citing United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995)). However, because Barksdale did
not raise these ineffective assistance of counsel claims before the district court,
we decline to consider them without prejudice to any right Barksdale may have
to raise them in a subsequent proceeding. See United States v. Gulley, 526 F.3d
809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).
      Barksdale also argues that the district court erred in denying his motion
to withdraw his guilty plea. We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v. Gaitan, 954 F.2d
1005, 1011 (5th Cir. 1992). District courts should consider seven factors when
ruling on a motion to withdraw a guilty plea: “(1) whether the defendant
asserted his innocence, (2) whether withdrawal would prejudice the government,
(3) whether the defendant delayed in filing the motion, (4) whether withdrawal
would inconvenience the court, (5) whether adequate assistance of counsel was
available to the defendant, (6) whether the plea was knowing and voluntary, and
(7) whether withdrawal would waste judicial resources.” Henderson, 72 F.3d at
465 (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984)). The

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district court’s determination should be made based on the totality of the
circumstances. United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). “No
single factor or combination of factors mandates a particular result.” Id. Factors
raised for the first time on appeal will not be considered. See id.; see also United
States v. Allen, No. 93-3563, 1994 WL 93560, at *2 (5th Cir. Mar. 18, 1994)
(unpublished); 5 TH C IR. R. 47.5.3 (providing that unpublished opinions issued
before January 1, 1996, are precedent).
      For the first time on appeal, Barksdale contends that the Government
would not be prejudiced by the withdrawal of the plea, the burden on the district
court would be minimal, any delay in the filing of his motion to withdraw his
plea was due to his trial counsel, and ineffective assistance by his trial counsel
rendered his guilty plea involuntary and uninformed. These new contentions
are not considered here. See Allen, 1994 WL 93560, at *2; Badger, 925 F.2d at
104. Barksdale also argues that the district court erred in considering his
assertion of innocence and explanation for why he pleaded guilty, namely that
he was under the belief that he was pleading guilty to his original indictment
rather than the superseding bill of information.           These arguments are
unavailing in light of the record, which reflects that the district court made clear
to Barksdale that he was pleading guilty to the offenses in his superseding bill
of information. Barksdale made no assertions of his innocence when entering
his plea, and he instead indicated that he was pleading guilty because he was
indeed guilty.   The district court did not abuse its discretion in denying
Barksdale’s motion to withdraw his guilty plea.
      AFFIRMED.




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