     Case: 11-60037     Document: 00511590290         Page: 1     Date Filed: 09/01/2011




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

                                                                            FILED
                                                                        September 1, 2011
                                     No. 11-60037
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN JOSEPH MAILLET,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:10-CR-60-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        John Joseph Maillet appeals his conviction for producing child
pornography. He argues that the district court erred in denying his motion to
withdraw his guilty plea. We review the district court’s ruling for an abuse of
discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
        Based on our analysis pursuant to United States v. Carr, 40 F.2d 339, 343-
44 (5th Cir. 1984), we conclude, for the reasons that follow, that the district court
did not abuse its discretion in denying Maillet’s motion to withdraw 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60037   Document: 00511590290     Page: 2   Date Filed: 09/01/2011

                                 No. 11-60037

plea: Maillet has not asserted that he is actually innocent of the charge of
producing child pornography; Maillet’s motion was not promptly filed; the record
supports the conclusion that Maillet received close assistance of counsel and,
additionally, that his plea was knowing and voluntary; and, as Maillet failed to
demonstrate a fair and just reason for withdrawal of his plea, see FED. R. CRIM.
P. 11(d)(2)(B), resetting the case for trial would have unnecessarily
inconvenienced the district court and wasted judicial resources. Although
withdrawal of the plea would not have prejudiced the Government, the absence
of such as showing, alone, is insufficient to mandate permission to withdraw a
plea where, as here, a credible reason has not been proffered. See Carr, 740 F.2d
at 345.
      Maillet additionally argues that his conviction exceeds Congress’s power
to legislate under the Commerce Clause. Maillet’s constitutional challenge to
the statute of conviction, however, is barred by his knowing and voluntary
appeal waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      AFFIRMED.




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