                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-10162
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

AVERY LASHAUN BENNETT, also known as Soldier,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 1:04-CR-41-4
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Avery Lashaun Bennett pleaded guilty to possession with

intent to distribute less than 50 grams of cocaine base and

aiding and abetting.   Bennett appeals the district court’s denial

of his motion to withdraw his guilty plea.

     Notwithstanding that under oath at his guilty plea hearing,

he admitted his guilt and admitted that the facts to support his

plea of guilty were accurate, Bennett asserts that he is

innocent.   Bennett, however, has not set forth any facts or


     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-10162
                                -2-

evidence in support of his assertion of innocence.   A claim of

innocence, standing alone, is insufficient to allow the

withdrawal of a guilty plea.   United States v. Rojas, 898 F.2d

40, 43 (5th Cir. 1990); see United States v. Carr, 740 F.2d 339,

344 (5th Cir. 1984).

     Bennett contends that, as a result of United States v.

Booker, 125 S. Ct. 738 (2005), he was denied his Sixth Amendment

right to effective assistance of counsel and his plea was not

voluntary.   Booker was decided on January 12, 2005, which was

after Bennett’s guilty plea on September 23, 2004.   “The

determination whether the performance of counsel was deficient is

based upon the law as it existed at the time of trial.”     Lucas v.

Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998).   At the time

Bennett pleaded guilty, the Sentencing Guidelines were mandatory;

therefore, counsel was not deficient in using the Sentencing

Guidelines to advise Bennett as to his potential sentence.     See

United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004),

vacated, 125 S. Ct. 1003 (2005); see also Strickland v.

Washington, 466 U.S. 668, 689-94 (1984).

     Additionally, to enter a knowing and voluntary plea, the

defendant must have “a full understanding of what the plea

connotes and of its consequence.”   Boykin v. Alabama, 395 U.S.

238, 244 (1969).   “As long as the defendant understood the length

of time he might possibly receive, he was fully aware of his

plea's consequences.”   United States v. Rivera, 898 F.2d 442, 447
                           No. 05-10162
                                -3-

(5th Cir. 1990) (brackets, internal quotation marks, and citation

omitted).   The district court clearly informed Bennett of the

possible maximum penalty for the crime he was pleading guilty to,

and, after being told this information, Bennett continued with

his plea.   Therefore, Bennett’s plea was knowing and voluntary.

See United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990).

     Considering the totality of the circumstances, it is clear

that Bennett did not establish a fair and just reason for

withdrawing his guilty plea.   See Carr, 740 F.2d at 343-44 (5th

Cir. 1984).   The district court did not abuse its discretion in

denying Bennett’s motion to withdraw his guilty plea.   See id.

     Accordingly, the district court’s judgment is AFFIRMED.
