     Case: 14-20502      Document: 00513199020         Page: 1    Date Filed: 09/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20502
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 18, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

WADE HAMPTON BIGELOW, also known as Ray Ford Gore,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-160-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Wade Hampton Bigelow pleaded guilty to aiding and abetting possession
with the intent to distribute five kilograms of cocaine and was sentenced to 192
months of imprisonment and five years of supervised release. He appeals the
district court’s denial of his motion to withdraw his guilty plea.
       The district court carefully considered each of the factors set forth in
United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984), to determine that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20502    Document: 00513199020     Page: 2   Date Filed: 09/18/2015


                                 No. 14-20502

Bigelow had not demonstrated a fair and just reason for withdrawing a guilty
plea. The district court noted that Bigelow had asserted his innocence based
on his belief that he had a valid defense, but stated that the mere assertion of
innocence was insufficient to permit withdrawal of a guilty plea. The district
court also determined that there had been considerable delay by Bigelow, who
did not seek to withdraw his plea until after the sentencing date had been set,
after the preparation of the PSR, and after Bigelow’s supervised release had
been revoked in a separate proceeding. Noting that Attorney Davis had met
with Bigelow numerous times, had filed numerous motions on Bigelow’s behalf,
had sought the determination of Bigelow’s competency, and had been diligent
in exploring the facts of the offense and Bigelow’s mental state, the district
court concluded that Bigelow had close assistance of counsel throughout the
proceedings.   Based on the Assistant U.S. Attorney’s representations, the
district court found that the Government would suffer some prejudice if the
plea were withdrawn. The court also determined that there would be some
inconvenience to the court and a waste of judicial resources, but that these
factors were not substantial.
      Bigelow’s primary argument was that his plea was not knowing and
voluntary because his “psychological and mental health problems, and his
medications, affected his ability to consult with his lawyer and his
understanding of the case.” Reviewing the plea colloquy and noting that he
was examined by two mental health professionals, both of whom determined
that he was competent to consult with his lawyer and to understand the court
proceedings, the district court found that Bigelow’s plea was knowing and
voluntary. Based on the totality of the circumstances, the court concluded that
the motion to withdraw the plea should be denied.




                                       2
    Case: 14-20502    Document: 00513199020     Page: 3     Date Filed: 09/18/2015


                                 No. 14-20502

      We review a district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion, and “a district court abuses its discretion in denying a
defendant's motion to withdraw a guilty plea only if the court bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. McKnight, 570 F.3d 641, 648–49 (5th Cir. 2009). The totality of the
circumstances shows that the district court did not abuse its discretion in
denying Bigelow’s motion to withdraw his guilty plea. See United States v.
Conroy, 567 F.3d 174, 177–79 (5th Cir. 2009). The district court’s denial of
Bigelow’s motion to withdraw his guilty plea is affirmed.
      Bigelow also filed a motion for substitution of his appellate counsel. We
may relieve appointed counsel “upon a showing that there is a conflict of
interest or other most pressing circumstances or that the interests of justice
otherwise require relief of counsel.” Fifth Circuit Plan for Representation on
Appeal Under the Criminal Justice Act, § 5(B); see also 18 U.S.C. § 3006A(c).
Bigelow claims that Attorney Adler should be replaced as appointed counsel
because he did not comply with Bigelow’s requests to raise certain “core” issues
on appeal, including an ineffective assistance of counsel claim against Attorney
Davis, which should not generally be litigated on direct appeal. United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014), cert. denied sub nom. Aldridge v.
United States, 135 S. Ct. 123 (2014). A counseled appellant does not have the
right to direct his appeal, or to insist that particular issues are raised. See
Jones v. Barnes, 463 U.S. 745, 751–753 (1983). Nothing indicates that the
interests of justice require substitution of counsel.     Bigelow’s motion for
substitution of counsel is denied.


      AFFIRMED; MOTION DENIED.




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