     Case: 10-60078     Document: 00511215088          Page: 1    Date Filed: 08/25/2010




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

                                                 FILED
                                                                           August 25, 2010
                                     No. 10-60078
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERT LLOYD,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 4:09-CR-50-1


Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Pursuant to his guilty plea, Robert Lloyd was convicted of one count of
assaulting a United States postmaster and one count of possession of a firearm
during and in relation to a crime of violence. The district court sentenced him
to serve a total of 221 months in prison and a five-year term of supervised
release. We are now presented with Lloyd’s challenges to his convictions.
        First, he argues that his plea should be set aside due to flaws in his F ED.
R. C RIM. P. 11 proceedings. Specifically, Lloyd complains that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60078     Document: 00511215088 Page: 2          Date Filed: 08/25/2010
                                  No. 10-60078

neglected to inform him of the elements of the firearms offense, the applicability
of the Sentencing Guidelines, the right to compel witnesses, the right to persist
in a plea of not guilty, and the right to counsel. Lloyd maintains that he did not
understand the plea process and asserts that his plea should be set aside
because his willingness to plead guilty was affected by the district court’s failure
to inform him of the items listed above.
      Lloyd’s failure to contemporaneously object to the alleged Rule 11 errors
of which he now complains results in application of the plain error standard to
these claims. See United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain
error, the appellant must show a forfeited error that is clear or obvious and that
affected his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If the appellant makes such a showing, this court has the discretion to
correct the error, but will do so only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. To show that his substantial
rights have been infringed in connection with the entry of a guilty plea, the
defendant must establish “a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004).
      Our review of the record shows that many of the alleged omissions raised
by Lloyd were in fact addressed by the district court. Although the district court
may not have used certain words that Lloyd avers should have been recited, we
have long held that Rule 11 does not mandate that the district court employ
talismanic phrases. See United States v. Bachynsky, 949 F.2d 722, 726 (5th Cir.
1991). Further, our review of the entire record does not show a reasonable
likelihood that Lloyd would not have pleaded guilty absent the purported Rule
11 errors. See Dominguez Benitez, 542 U.S. at 83, 85 ; Vonn, 535 U.S. at 74-75.
We reject Lloyd’s claim that his plea should be set aside for want of a proper
Rule 11 colloquy.



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                                 No. 10-60078

      Next, Lloyd argues that the district court abused its discretion by denying
his motions to withdraw his guilty plea. This argument meets the same fate as
his first claim. In determining whether a district court has abused its discretion
in denying a motion to withdraw a guilty plea, this court considers a number of
factors, including assertions of innocence, delay in moving to withdraw, the
availability of close assistance of counsel, and the voluntariness of the plea. See
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). As the district court
concluded, all of these factors weigh against granting Lloyd’s motions.
      Lloyd’s naked assertion of innocence is not credible, especially in light of
his sworn assertions at rearraignment. See United States v. McKnight, 570 F.3d
641, 649 (5th Cir. 2009). Lloyd does not dispute the district court’s conclusions
that allowing him to withdraw his plea would prejudice the Government, waste
judicial resources, and inconvenience the court; our review of the record leads us
to agree with the district court with respect to these factors. We likewise see no
error in connection with the district court’s conclusions that the record shows
that Lloyd enjoyed close assistance of counsel and knowingly and voluntarily
entered his guilty plea. The record confirms the district court’s determination
that Lloyd unreasonably delayed bringing his request to withdraw his plea.
Lloyd has not established that the district court abused its discretion in denying
his motion to withdraw. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003).
      The judgment of the district court is AFFIRMED.




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