     Case: 10-31059 Document: 00511494054 Page: 1 Date Filed: 06/01/2011




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

                                                 FILED
                                                                            June 1, 2011
                                     No. 10-31059
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ADAM LEE TOLER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CR-113-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       On the day his trial was scheduled to commence, Adam Lee Toler pleaded
guilty to one count of interstate travel in aid of racketeering and arson and to
one count of attempted arson of a building used in interstate commerce. Over
three months after the district court accepted his guilty pleas, Toler moved to
withdraw them. The district court denied Toler’s motion. Toler was sentenced
to concurrent 60-month terms of imprisonment and to a three-year term of
supervised release. He appeals his convictions.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-31059 Document: 00511494054 Page: 2 Date Filed: 06/01/2011

                                  No. 10-31059

      Toler argues that the district court erred in denying his motion to
withdraw his guilty pleas. He contends that he pleaded guilty due to erroneous
advice provided by his trial counsel.
      We review the district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir.
2009). Because Toler did not seek to withdraw his guilty pleas before the district
court accepted them, he had no absolute right to withdraw his pleas. See United
States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008); F ED. R. C RIM. P. 11(d). Before
sentencing, a defendant may withdraw his guilty plea that the district court has
accepted if “the defendant can show a fair and just reason for requesting the
withdrawal.” F ED. R. C RIM. P. 11(d)(2)(B). “The burden of establishing a fair and
just reason for withdrawing a guilty plea remains at all times on the defendant.”
United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
      In reviewing the denial of a motion to withdraw a guilty plea, we consider
whether (1) the defendant asserted his innocence, (2) withdrawal would
prejudice the government, (3) the defendant delayed in filing the withdrawal
motion, (4) withdrawal would inconvenience the court, (5) close assistance of
counsel was available to the defendant, (6) the plea was knowing and voluntary,
and (7) withdrawal would waste judicial resources. United States v. Carr, 740
F.2d 339, 343-44 (5th Cir. 1984). Because we must consider the totality of the
circumstances in applying these factors, id. at 344, “[n]o single factor or
combination of factors mandates a particular result.” United States v. Badger,
925 F.2d 101, 104 (5th Cir. 1991).
      Based on the totality of the circumstances, Toler failed, both in the district
court and in this court, to carry his burden of establishing a fair and just reason
for the withdrawal of his guilty pleas. See Still, 102 F.3d at 124. Our review of
the record, Toler’s arguments, and the district court’s consideration of the Carr
factors shows that the district court did not abuse its discretion in denying
Toler’s motion to withdraw his guilty pleas.

                                         2
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                                 No. 10-31059

      Insofar as Toler seeks to raise a claim of ineffective assistance of counsel
in this direct appeal, we decline to consider the claim. A claim of ineffective
assistance of trial counsel generally “cannot be resolved on direct appeal when
the claim has not been raised before the district court since no opportunity
existed to develop the record on the merits of the allegations.” United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks and
citation omitted).
      AFFIRMED.




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