     Case: 15-10725      Document: 00513702551         Page: 1    Date Filed: 10/03/2016




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

                                    No. 15-10725
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 3, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

GARY ANTHONY COLE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-82-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Gary Anthony Cole, while in federal custody for a separate offense, was
charged with mailing threatening communications in violation of 18 U.S.C.
§ 876(c). He pled guilty to the offense and was sentenced to a 36-month term
of imprisonment, to be followed by a three-year term of supervised release.
Directly after the district court pronounced Cole’s sentence, Cole moved to
withdraw his guilty plea. The motion was denied. On appeal, Cole challenges


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10725    Document: 00513702551     Page: 2   Date Filed: 10/03/2016


                                 No. 15-10725

only the district court’s denial of his motion to withdraw his guilty plea. We
AFFIRM.
      Cole’s motion to withdraw his guilty plea appears to have been based, in
part, on an assertion that his plea was tainted by counsel’s ineffective
assistance.   Where a motion to withdraw a plea incorporates a claim of
ineffective assistance, “dismissal of an appeal based on a waiver in the plea
agreement is inappropriate . . . .” See United States v. Henderson, 72 F.3d 463,
465 (5th Cir. 1995). We assume without deciding that review of Cole’s claim is
not barred by his waiver of the right to appeal his conviction and sentence.
Regardless of the waiver, Cole’s underlying claim entitles him to no relief.
      Because Cole did not move to withdraw his guilty plea until after he was
sentenced, he cannot obtain the relief he seeks. Federal Rule of Criminal
Procedure 11(e) states that once “the court imposes sentence, the defendant
may not withdraw a plea of guilty or nolo contendere, and the plea may be set
aside only on direct appeal or collateral attack.” Cole’s argument that he
constructively sought to withdraw his plea prior to the pronouncement of his
sentence is unconvincing.
      Cole’s conviction and sentence are AFFIRMED.




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