     Case: 09-20716 Document: 00511405029 Page: 1 Date Filed: 03/09/2011




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

                                                 FILED
                                                                            March 9, 2011
                                     No. 09-20716
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RIZWAN SAEED,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-260-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rizwan Saeed pleaded guilty to an information charging that he knowingly
and willfully made a false material statement within the jurisdiction of the
executive branch of the Government of the United States. He contends that his
plea was invalid because there was an insufficient factual basis in support of his
plea, that the district court abused its discretion by refusing to allow him to
withdraw his plea, and that at the least it should have granted an evidentiary
hearing. We affirm the conviction.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20716

      Saeed was charged with violating 18 U.S.C. § 1001(a)(2), which prohibits
“knowingly and willfully . . . mak[ing] any materially false, fictitious, or
fraudulent statement or representation” in “any matter within the jurisdiction
of the executive, legislative, or judicial branch of the Government of the United
States.” The defendant must act with specific intent to deceive or mislead.1
Saeed argues that the factual basis in this case did not establish that he
committed the offense with the required intent.
      A district court may not enter a judgment of conviction based upon a guilty
plea unless it is satisfied that there is a factual basis for the plea.2 We consider
the entire record of the proceedings in assessing whether there was a sufficient
factual basis,3 including the allegations in the information 4 and any sworn
assertions at rearraignment.5 The factual basis must be specific enough to allow
the district court to determine that the defendant’s conduct constituted a crime.6
Because Saeed did not object to the sufficiency of the factual basis in the district
court, this court reviews the issue for plain error only.7
      An examination of the record supports the district court’s conclusion that
there was a sufficient basis for Saeed’s plea. The factual basis to which Saeed
agreed at rearraignment set forth that he knowingly made a false statement to
federal agents during an investigation into potential misconduct. That sworn
statement explains that Saeed was employed as a Customs and Border



      1
          See, e.g., United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986).
      2
          FED . R. CRIM . P. 11(b)(3).
      3
          United States v. Vonn, 535 U.S. 55, 74 (2002).
      4
          See United States v. Bachynsky, 949 F.2d 722, 730 (5th Cir. 1991).
      5
          See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
      6
          United States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006).
      7
          United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).

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                                          No. 09-20716

Protection officer and had access to computer databases that were for official use
only and which were not publicly available. In June 2008, an FBI agent, along
with a Department of Homeland Security employee, interviewed Saeed about his
computer usage. During the interview, Saeed was asked if he had used a
government computer to conduct queries for Khalid Siddiqui, a person whom
Saeed was familiar with. According to the statement, Saeed replied that “he did
not think he made computer queries regarding the name Khalid Siddiqui, which
was a statement that he knew to be false.”               In fact, Saeed had “conducted
unauthorized computer queries on a government computer regarding the name
Khalid Siddiqui, which included six variations of the name . . . on July 17th of
2007 and . . . September 15th of 2007.” Saeed’s knowing misrepresentation to
investigators during an investigation into his possible misconduct was sufficient
for the finder of fact to infer that he acted with intent to deceive.8
      Saeed also argues that the district court abused its discretion by denying
his motion to withdraw his guilty plea without conducting the analysis required
by United States v. Carr.9 We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion.10 The failure of the district court
to address each of the Carr factors individually does not establish that the court
abused its discretion.11
      Saeed’s contention that the district court did not consider the Carr factors
is belied by the record. The Carr factors were addressed in pleadings related to
his motion to withdraw his plea and were raised before the district court at
sentencing.12 The record indicates that the court considered several of the Carr


      8
           See Guzman, 781 F.2d at 431.
      9
           See 740 F.2d 339, 343–44 (5th Cir. 1984).
      10
           United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
      11
           United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      12
           Cf. Powell, 354 F.3d at 371.

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                                          No. 09-20716

factors and cited specific factors that informed its decision to deny the motion.13
Saeed has not offered any argument or facts establishing that the district court’s
disposition of his motion was incorrect; he has not addressed any of the Carr
factors or argued whether those factors support granting his motion. Thus,
Saeed has not shown that the district court abused its discretion in denying his
motion to withdraw his plea.14
      Saeed also asserts that the district court should have held an evidentiary
hearing prior to denying his motion to withdraw his plea. A district court’s
decision not to hold an evidentiary hearing on a motion to withdraw is reviewed
for abuse of discretion.15
      Saeed has failed to identify any facts which, if proven, would have justified
withdrawal of his plea.16 Although he insists that his plea was not given freely
and voluntarily and that he did not commit the offense of conviction, he failed
to proffer any evidence or factual allegations to support those assertions. His
contention that the district court wrongly denied a hearing based upon its belief
that a “mini-trial” would be required is not supported by the record.
      AFFIRMED.




      13
           See Badger, 925 F.2d at 104.
      14
           Cf. Powell, 354 F.3d at 370.
      15
           Id.
      16
           See id.

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