     Case: 13-60404      Document: 00513475041         Page: 1    Date Filed: 04/21/2016



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

                                      No. 13-60404
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                               April 21, 2016

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff–Appellee,

v.

WALTER HAMPTON,

              Defendant–Appellant.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11-CR-169


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Walter Hampton pleaded guilty to conspiracy to
distribute drugs and conspiracy to launder money. Twenty-two days later,
Hampton filed a motion to withdraw his plea, which the district court denied.
Hampton argues on appeal that the district court violated Federal Rule of
Criminal Procedure 11 by accepting his plea and then abused its discretion in
denying his motion to withdraw his plea. Because we find that both of his
arguments lack merit, we AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60404
                               I. BACKGROUND
      On April 25, 2012, Hampton was indicted for conspiracy to distribute
cocaine in violation of 21 U.S.C. § 846 (“Count 1”) and conspiracy to launder
drug proceeds in violation of 18 U.S.C. § 1956(h) (“Count 3”). 1 After initially
pleading not guilty, Hampton signed a plea agreement in which he agreed to
plead guilty to both counts.
      On November 5, 2012, Hampton appeared in court to plead guilty in
accordance with the plea agreement. At the outset of the plea hearing,
Hampton expressed doubt about entering his guilty plea. The court asked
Hampton to confer with his attorney. After Hampton conferred with his
counsel, Hampton’s counsel explained that Hampton was ready to plead
guilty to conspiracy to distribute drugs but that Hampton did not believe he
conspired to launder money in the manner the Government alleged. The
court then gave Hampton an opportunity to confer with his defense counsel
and the prosecuting attorney in order to decide how he wanted to plead. After
conferring, Hampton told the court that he wished to plead guilty to both
counts. The court confirmed that Hampton was entering his plea voluntarily.
Hampton then conferred with his attorney a third time and accepted the
terms of the negotiated plea agreement. The court acknowledged that
Hampton had expressed concern about the money laundering charge and
again confirmed that Hampton’s plea was knowing and voluntary as to that
count. The court then accepted Hampton’s guilty plea to both counts.
      On November 27, 2012, twenty-two days after entering his guilty plea,
Hampton filed a pro se letter with the district court seeking to withdraw his



      Count 2 of the indictment charged Hampton’s co-conspirators but did not charge
      1

Hampton.


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                                 No. 13-60404
plea. At a hearing in January 2013, Hampton explained that he only pleaded
guilty to Count 3 because his defense counsel advised him the court would
not accept different pleas for each count. After reviewing Hampton’s claims
under the test set forth in United States v. Carr, 740 F.2d 339, 344 (5th Cir.
1984), the district court denied his motion. In May 2013, the court sentenced
Hampton to concurrent terms of 205 months for each count. Hampton timely
appealed.
                               II. DISCUSSION
      Hampton raises two issues on appeal. First, he argues that the district
court violated Federal Rule of Criminal Procedure 11 by failing to ensure that
his plea was made knowingly and voluntarily. Second, he argues the district
court abused its discretion by denying his motion to withdraw his guilty plea.
A.    Rule 11 Violation
      As Hampton failed to raise a Rule 11 objection in the district court, we
review this claim for plain error. See United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004). “Plain error review requires the appellant to show (1)
there is an error, (2) that is clear and obvious, and (3) that affects his
substantial rights.” United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001)
(en banc). If these are established, we retain discretion to correct the error if
it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing United States v. Olano, 507 U.S. 725, 735–36 (1993)).
      Rule 11 requires that the district court “inform the defendant of, and
determine that the defendant understands . . . the right to plead not guilty.”
Fed. R. Crim. P. 11(b)(1)(B). The district court must also “determine that the
plea is voluntary.” Fed. R. Crim. P. 11(b)(2). To satisfy this obligation, the
district court must conduct a colloquy and determine that “the defendant



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                                  No. 13-60404
understands what he is admitting and what the consequences of that
admission may be, as well as that what he is admitting constitutes the crime
charged, and that his admission is voluntarily made.” United States v.
Rodriguez-DeMaya, 674 F.2d 1122, 1125–26 (5th Cir. 1982) (quoting United
States v. Dayton, 604 F.2d 931, 943 (5th Cir. 1979) (en banc)).
      Hampton argues the district court erred by not advising him that he
could plead separately to each count. Hampton asserts that he pleaded guilty
to Count 3 only because his counsel advised him the court would not allow
him to plead guilty to one count and not guilty to the other. Hampton likens
his case to United States v. Neal, 509 F. App’x 302 (5th Cir. 2013), where we
held that the district court violated Rule 11 when it told the defendant “[y]ou
need to either plead guilty . . . or go to trial,” as this may have implied the
defendant’s “choice was binary—that he could either plead guilty to all
charges or go to trial on all charges.” Id. at 305, 308–09.
      Unlike Neal, however, the record here reveals the district court treated
each count separately and confirmed that Hampton’s plea to each count was
knowing and voluntary. After Hampton confirmed that he was ready to plead
guilty to Count 1 but had doubts about Count 3, the court asked Hampton to
confer with his defense counsel and the prosecutor and decide how he would
like to plead to Count 3 specifically. When Hampton returned and stated that
he wanted to plead guilty to Count 3, the court asked, “Tell me what changed
your mind about entering a plea to Count 3.” Hampton replied: “Because I
gave somebody $4,500, and that’s the reason they said I money laundering.”
At the end of the colloquy, the court acknowledged that Hampton had raised
concerns about pleading to Count 3 and confirmed again that Hampton’s plea
was knowing and voluntary with respect to that count.



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                                  No. 13-60404
      Accordingly, the record does not support Hampton’s claim that he was
unaware of his right to plead separately to each count. The district court
ensured that Hampton understood his rights in this regard and that he was
knowingly and voluntarily pleading to each count. We therefore find that the
district court committed no error, clear or otherwise, under Rule 11. As we
find no error, we do not proceed to consider the remainder of the plain error
analysis. See Marek, 238 F.3d at 315.
B.    Motion to Withdraw Plea
      We review a district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. Badger, 925 F.2d 101, 103 (5th Cir.
1991). “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).
      A defendant may withdraw a guilty plea if “the defendant can show a
fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). The district court has “broad discretion” in making this
determination. Carr, 740 F.2d at 344 (quoting United States v. Morrow, 537
F.2d 120, 146 (5th Cir. 1976)). “There is no absolute right to withdraw a
guilty plea,” United States v. McElhaney, 469 F.3d 382, 385 (5th Cir. 2006),
and “the defendant has the burden of proving the withdrawal is justified,”
Carr, 740 F.2d at 344. In Carr, we explained the following non-exclusive
factors should be considered in deciding whether a withdrawal would be fair
and just:
      (1) whether or not the defendant has asserted his innocence; (2)
      whether or not the government would suffer prejudice if the
      withdrawal motion were granted; (3) whether or not the
      defendant has delayed in filing his withdrawal motion; (4)
      whether or not the withdrawal would substantially inconvenience


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                                  No. 13-60404
         the court; (5) whether or not close assistance of counsel was
         available; (6) whether or not the original plea was knowing and
         voluntary; and (7) whether or not the withdrawal would waste
         judicial resources; and, as applicable, the reason why defenses
         advanced later were not proffered at the time of the original
         pleading, or the reasons why a defendant delayed in making his
         withdrawal motion.
Id. at 343–44 (footnotes omitted). When applying these factors, the district
court should consider the “totality of the circumstances.” Id. at 344.
         The district court found that while Hampton had asserted his
innocence as to Count 3, the remaining Carr factors weighed against allowing
him to withdraw his plea. The district court explained that it had conducted a
thorough and careful colloquy with Hampton, had allowed Hampton to confer
with his counsel, and had made “multiple inquiries” to ensure Hampton
entered a knowing and voluntary plea.
         Hampton contends that the district court erred in finding that factors
two through seven of the Carr test weighed against him. Having reviewed the
record and arguments carefully, we conclude that the district court’s analysis
of these factors was reasonable. The district court was therefore within its
“broad discretion” in denying Hampton’s motion to withdraw his plea.
                               III. CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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