     Case: 09-10046 Document: 00511403328 Page: 1 Date Filed: 03/07/2011




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

                                                 FILED
                                                                            March 7, 2011

                                       No. 09-10046                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JIMMIE LEE PRESLEY

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              No. 3:07–cr–00338–P–1


Before REAVLEY, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
       This appeal arises out of Defendant-Appellant Jimmie Lee Presley’s
(“Presley”) guilty plea to one count of conspiracy to commit bank fraud. Because
we find no reversible error, we AFFIRM.
                                              I.
       While represented by counsel and pursuant to an agreement with the
Government, Presley pleaded guilty to one count of conspiracy to commit bank
fraud. The plea agreement contained a factual resume. While foreclosing his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-10046

ability to mount a direct challenge to his guilty plea, the plea agreement
expressly reserved to Presley the right to bring a claim of ineffective assistance
of counsel.
      Presley admitted to the contents of the factual resume, which stated that
Presley recruited co-conspirators; instructed them to the workings of the
fraudulent scheme; made false identification documents; forged checks; and,
drove co-conspirators to banks where, presumably, they cashed the checks.
Presley also admitted the loss amount to be somewhere between $200,000 and
$400,000. On March 28, 2008, Presley executed the plea agreement. On April
16, 2008, the district court held a rearraignment hearing (“rearraignment
hearing”).
      At the rearraignment hearing, in open court, Presley again admitted to the
contents of the factual resume, acknowledged that he signed it, understood all
of the information contained within it, and attested to its truth. Also at the
rearraignment hearing, Presley ratified that he made the plea knowingly, that
it was voluntary, and that he was not coerced into pleading guilty.             A
presentence report (“PSR”) was prepared and disclosed in June 2008, pursuant
to the district court’s scheduling order. Factoring in the loss amount, Presley’s
admitted leadership role, and because the scheme involved the creation of false
documents, the PSR recommended a Sentencing Guidelines range of 77-96
months of imprisonment. This range also factored into consideration Presley’s
acceptance of responsibility.
      In July 2008, through his counsel Anthony Lyons, Presley moved to
withdraw his guilty plea and Lyons moved to withdraw as counsel.              The
Government opposed Presley’s motion to withdraw his plea, but deferred to the
district court as to Lyons’s motion to withdraw as counsel.
      The district court held a hearing on both motions on September 3, 2008.
At the September 2008 hearing, the district court inquired of Presley as to the

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motions. Presley indicated that he wished to obtain a new lawyer, but wanted
to keep his guilty plea “as it is.”    The district court relieved Lyons of his
representation and, pursuant to Presley’s desire to abide by his guilty plea,
denied his motion to withdraw the guilty plea as moot.
      After the district court relieved Lyons of his representation, yet still during
the September 2008 hearing, Lyons addressed the district court to “get at least
one issue on the record.” Lyons informed the court that Presley wrote him
suggesting his desire to withdraw the plea and accusing Lyons of permitting
Presley to sign a false factual resume. Lyons explained that he discussed the
Government’s allegation and the factual resume with Presley and did not
encourage Presley to sign a document Presley believed to be untrue. Lyons
asked the district court to ask Presley whether he believed that the factual
resume was untrue “because it was Lyons’s testimony that Presley freely and
voluntarily, with knowledge of what he was doing, signed that factual resume.”
      The district court questioned Presley regarding Lyons’s statement.
Presley responded that he signed the factual resume with the understanding
that Lyons spoke to the judge who reported to Lyons that the judge would “throw
the book at” Presley, were Presley not to assent to the terms of the plea. Lyons
denied this. Lyons indicated, however, that he informed Presley of the gravity
of the Government’s evidence and the likelihood of a conviction should Presley
opt to proceed to trial. Lyons also explained his opinion to the district court that
the plea was favorable to Presley, especially given the “lateness or the tardiness
by which [Presley] decided to plead guilty.” The district court told Presley that
Lyons did not discuss Presley’s situation with the court, and that the district
court never told Lyons that it would “throw the book” at Presley should Presley
choose not to assent to the plea agreement.
      Lyons requested once more that the district court question Presley as to
whether Presley believed the factual resume was true or not. Presley indicated

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that he did not recruit others for the conspiracy nor did he make identification
cards, as the factual resume alleged. When asked by the district court as to why
he signed a purportedly false factual resume, Presley restated his belief that the
district court would “throw the book at him,” as Lyons allegedly warned. When
asked by the district court as to whether he recalled pleading guilty at the
rearraignment hearing, under oath, absent duress, and without anyone having
made promises to him, Presley indicated doing so but that he was frightened at
the time.
      Lyons stated that the Government threatened to supersede the indictment
and charge Presley with additional crimes should he choose to withdraw his
guilty plea. Lyons reiterated his request that the district court permit Presley
to withdraw his guilty plea if Presley alleged that the factual resume was
untrue. Presley indicated that the factual resume contained false information.
The district court explained that this would be a matter Presley would need to
discuss with his new attorney. A new attorney, Sindu Stovall, was appointed to
represent Presley.
      In November 2008, two months after the appointment of Stovall, Presley
sought to have Stovall withdraw as counsel.         At this time, Presley also
reinitiated his motion to withdraw the guilty plea. The district court held a
hearing pursuant to Presley’s request. At the November 2008 hearing, Presley
reiterated concern regarding the amount of loss calculated in the PSR, and the
leader/organizing sentencing enhancement. Stovall explained that they were
issues for sentencing and that she was working on those issues. Presley then
decided he did not wish to withdraw his guilty plea. After clarifying confusion
from Presley’s applications for the withdrawal of his plea and the withdrawal of
counsel, and his subsequent retreats from those applications, the district court
denied both of Presley’s motions. At the conclusion of the November 2008



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hearing, while represented by Stovall, Presley chose not to withdraw from his
guilty plea.
      In January 2009, the case proceeded to sentencing. At the beginning of
the sentencing hearing, Stovall notified the district court of Presley’s desire to
renew once more his wish to withdraw his guilty plea.            The district court
reminded Presley of its two prior conversations with Presley, on the record,
whereby on both occasions he maintained a desire to persist in his guilty plea.
Presley indicated that though he was guilty of the underlying offense, he claimed
he was not a leader, did not cause as great a loss as the PSR alleged, and that
he did not produce fake identification cards.     Presley indicated that in his
opinion, Stovall inadequately addressed those issues. Stovall indicated that she
discussed the plea agreement with Presley including the factual resume, but
there was a conflict because Presley might not have either “realized or
understood what he was doing.” Presley indicated that he was unaware of what
he was signing when he signed the factual resume—thus, it was not voluntary.
      For her part, Stovall indicated she could not change the fact that Presley
admitted to the contents of the factual resume. The Government at all times
opposed the motion to withdraw the guilty plea. The district court denied
Presley’s application. It reasoned that the court had on two prior occasions
considered the issues raised by Presley and that, nonetheless, it did not accept
that Presley did not know the contents of the factual resume when he admitted
to it. Moreover, the district court stated the factual resume was read in open
court and Presley did not voice objections to it at that time.
      Thereafter, and during the same January 2009 sentencing hearing,
Presley testified. He explained that he received only $25,000 from the scheme,
though he acknowledged that the banks lost more than $200,000. He disavowed
that he was the ringleader of the scheme, and indicated that he did not recruit
others to participate, did not devise the scheme, and did not create fake

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                                   No. 09-10046

identification cards. He claimed that he only once drove another person to the
bank to cash a check.
      The district court concluded that Presley committed perjury when he
denied his role in the offense, explaining that his testimony did not comport with
the statements of other co-conspirators described in the PSR. The district court
next found that Presley was responsible not only for the entire amount of the
loss he caused, but also that which he received. The district court also found
that Presley’s criminal history score was underrepresented in the PSR because
it did not account for certain other prior convictions for burglary and attempted
burglary, and because it did not consider his other criminal activity. All told, the
district court sentenced Presley to a 120-month prison sentence, a five-year term
of supervised release, and restitution. Through counsel, Presley appealed.
      Thereafter, Stovall moved to withdraw as counsel. After initially denying
her application, the district court permitted Stovall’s withdrawal and appointed
a federal public defender to represent Presley.      He, too, moved to withdraw
because he could discern no nonfrivolous basis for appeal, to which Presley filed
two responses.    Presley filed a motion to strike and substitute one of his
responses following the public defender’s motion for withdrawal. He also filed
a motion for release pending appeal. This court denied the motion to withdraw
without prejudice, explaining that the appeal raised an arguable issue of
whether Presley was denied the right to counsel at a critical stage of the
proceedings. It carried with the case Presley’s motion to strike and for release
pending appeal.
                                        II.
                                        A.
      “The question of whether someone was rendered ineffective assistance of
counsel is a mixed question of law and fact that this court reviews de novo.”
United States v. Harris, 408 F.3d 186, 186 (5th Cir. 2005) (citation omitted).

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                                        B.
      The Sixth Amendment entitles a criminal defendant to assistance of
counsel at all critical stages of proceedings. United States v. Cronic, 466 U.S.
648, 659 (1984).    Put differently, counsel is afforded where a defendant’s
substantial rights may be affected. United States v. Taylor, 933 F.2d 307, 312
(5th Cir. 1991). While neither the Supreme Court nor this court has delineated
the stages at which the presence of counsel is necessary, the Supreme Court has
provided some meaningful abstract standards to assist in making this
determination: the denial of counsel must be significant enough to render the
adversary process unreliable and the “surrounding circumstances” must justify
the presumption that the defendant did not receive the effective assistance of
counsel. United States v. Russell, 205 F.3d 768, 771 (5th Cir. 2000).
      This court turns to the Supreme Court’s two-pronged test in Strickland v.
Washington, 466 U.S. 668 (1984), to assess whether a defendant has been
rendered ineffective assistance of counsel. To prevail on an ineffective assistance
of counsel claim, a defendant must show that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Id. at 687.
Put differently, Presley must show that counsel’s representation fell below an
objective standard of reasonableness, id. at 688, and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
                                        C.
                                        1.
      The issue before the court is not whether the district court erred in
denying Presley’s motion to withdraw his guilty plea. Rather, the issue is
whether Presley’s rights under the Constitution were violated when, after Lyons
withdrew as counsel at the September 2008 hearing, he was denied effective



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                                        No. 09-10046

assistance of counsel in the consideration of his motion to withdraw his guilty
plea.1
         Before turning to the merits of Presley’s argument, there remains the
threshold inquiry of whether Presley was entitled to counsel at the hearing on
his motion to withdraw his guilty plea. Neither the Supreme Court nor this
court have spoken directly to the requirement of counsel at a motion to
withdrawal hearing—its pronouncement on the matter comes no closer than
requiring counsel at critical stages of criminal proceedings.                  See generally
Cronic, 466 U.S. at 659.
         Presley addresses this question in his brief on the merits, and urges that
this court hold he was due counsel at his motion to withdraw hearing. The
Government does not. The Government argues that the question is not explicitly
before the court because Presley was afforded a hearing on his motion to
withdraw, with the presence of counsel in November 2008.
         Without explicitly holding so, we assume arguendo that Presley was
entitled to counsel at the hearing on his motion to withdraw his guilty plea. Our
assumption is informed by a survey of our sister circuits. See Forbes v. United
States, 574 F.3d 101, 106 (2d Cir. 2009)(“A motion to withdraw a guilty plea is
a critical state of a criminal proceeding.”); United States v. Segarra-Rivera, 473
F.3d 381, 384 (1st Cir. 2007)(“The entry of a guilty plea is one such critical stage,
and a plea-withdrawal hearing is another.”); United States v. Garrett, 90 F.3d
210, 212 (7th Cir. 1996) (“A defendant is entitled to counsel during all critical
stages of the criminal proceedings, including a hearing on defendant’s motion to
withdraw a guilty plea.”); United States v. Crowley, 529 F.2d 1066, 1069 (3d Cir.



         1
         It appears to the court that Presley’s claim of ineffective assistance of counsel is ripe
for consideration because the record was sufficiently developed in the district court. United
States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Pursuant to the terms of Presley’s
written plea agreement and Cantwell, we need not anticipate a motion under 28 U.S.C. § 2255.

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1976) (“At least absent unusual circumstances, a hearing on a motion to
withdraw a guilty plea is sufficiently important in a federal criminal prosecution
that the Sixth Amendment requires the presence of counsel”); United States v.
Joslin, 434 F.2d 526, 529–30 (D.C. Cir. 1970) (“Since the proceeding . . . was an
integral part of the criminal prosecution, appellant was, of course, entitled to
counsel on his request to alter his guilty pleas.”).
                                        2.
      With our assumption in mind, we consider now the merits of Presley’s
ineffective assistance of counsel argument. Presley contends that after Lyons
was dismissed at the September 2008 hearing, Presley’s colloquy with the
district court, without the benefit of counsel, violated his constitutional rights
as this deprivation occurred at an arguably critical stage of the criminal
proceedings. He maintains that the September 2008 hearing “indelibly colored
the district court’s assessment of” him. He criticizes the conduct of both Lyons
and Stovall, particularly taking exception with Lyons at the September 2008
hearing.
      Meanwhile, the Government argues that even assuming that Presley was
denied the right to counsel while the court considered his motion to withdraw his
guilty plea, he had “another opportunity to press for the withdrawal of his guilty
plea while represented by counsel” at the November 2008 hearing when he was
represented by Stovall. We find the Government’s argument persuasive.
      Presley argues that the exchange from the September 2008 hearing
amongst the district court, Lyons, and Presley caused him to make self-
implicating statements. That is simply not true. First, after Lyons withdrew,
Lyons merely directed the court to question Presley on the narrow question of
whether Presley wished to withdraw his plea. Lyons did not add to the perils
Presley faced because the question of Presley’s guilt was already fait accompli,
as evidenced by his plea from April 2008. Put differently, Presley’s fate was

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sealed at the rearraignment hearing. If he wanted to deviate from that hearing,
he had every right to. Instead, when prompted by the district court at Lyons’s
request, Presley indicated he did not wish to proceed with his motion to
withdraw the guilty plea.
      Presley would have this court believe that the September 2008 hearing
contributed—either explicitly or implicitly—to a sentencing enhancement based
on his perjury at the January 2009 sentencing hearing. Again, this does not
withstand the fact that Presley’s actions were of his own making. The record
solidly supports a perjury enhancement when comparing his April 2008
rearraignment testimony with his January 2009 version.
      Secondly, Lyons’s protest that the district court clarify Presley’s position
on the contents of the factual resume bubbled to the surface only after Presley
effectively accused Lyons of suborning perjury by coercing and/or intimidating
him to sign a factual resume that contained false information. Moreover, a
review of the transcript from the September 2008 hearing reveals that, though
the district court had dismissed Lyons from representing Presley, Lyons
continued in his advocacy on behalf of Presley by urging the district court to
permit Presley to withdraw his guilty plea in the event it contained factually
untrue statements, to prevent Presley from admitting to something he did not
believe to be an accurate representation of what transpired. On many occasions,
Presley was asked by the district court whether he wanted to withdraw his
guilty plea and on many occasions, Presley expressly indicated he wished to
retain it.
      Thirdly, as the Government argues, Presley had the aide of counsel in
November 2008 through the assistance of Stovall. On this fact alone, we can
find that Presley’s averments that he was rendered ineffective assistance of
counsel are without merit, much less enough to render the adversary process
unreliable.   We further find that the surrounding circumstances of this

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                                  No. 09-10046

case—specifically that Presley, while represented by counsel, was given the
opportunity to withdraw his plea later in the proceedings—do not justify the
presumption of ineffectiveness of counsel. See Strickland, 466 U.S. at 694;
Russell, 205 F.3d at 771.
      Next, Presley’s assertion that he was forced into pleading guilty against
an abstract and unsubstantiated threat that “the district court would throw the
book at him” is unsupported by the record and contradicts his proclamation, in
open court, that he was making his guilty plea “freely and voluntarily” and that
it was “not the result of force or threats or of promises.” In its written plea
agreement, the Government required Presley’s assent to the factual resume.
Furthermore, the district court ensured his plea was knowing, intelligent, and
voluntary, as Federal Rule of Criminal Procedure 11 mandates.
      Last, but certainly not least, Presley’s complaints of ineffective assistance
of counsel strike the court as hollow. A review of the record reveals that Presley
took no exception with the contents of the factual resume until the PSR was
produced and disclosed to him, and the gravity of his potential sentence was
made evident. In fact, a comparison of his original PSR with those portions of
the factual resume with which Presley would later take exception reveal
disagreements with the PSR’s loss amount, its designation of Presley as
leader/organizer designation of the scheme, and that he created false
identification for those involved. A plainly reasonable inference is that Presley’s
attempts to cherry-pick the factual resume and take exception with certain
portions of the PSR evince an attempt to avoid the harshest penalties his
admitted-to crimes carry. Had the district court permitted Presley to extract
portions of his factual resume in an attempt to avoid certain penalties, it would
allow Presley to admit guilt to only those portions of the factual resume which,
to him, comported with his concept of what should be an ideal sentence. He
effectively seeks the best of both worlds.

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                                  No. 09-10046

      For these reasons, the sequence of the September 2008 hearings, and a
review of the record, does not support Presley’s position that his counsel
rendered ineffective assistance. Lyons’s, and later Stovall’s representation was
not so deficient so as to render the adversary process unreliable or conclude that
the defendant did not receive the effective assistance of counsel.        Presley
vacillated between adhering to and abandoning his guilty plea and, at the
November 2008 hearing, had the opportunity to confront the matter with the
presence of counsel. Thus, we conclude his representation did not offend the
Supreme Court’s two-pronged ineffective assistance of counsel test outlined in
Strickland.
                                       D.
      This court carried with the case two motions. Presley filed a pro se motion
for release pending appeal. He also filed a motion to strike and substitute one
of his responses following the public defender’s motion for withdrawal.
                                       1.
      This court will deny Presley’s pro se motion for release pending appeal
because this court does not permit hybrid representation and, thus, his motion
is unauthorized. United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir.
1999); 5 TH C IR. R. 28.6 (“Unless specifically directed by court order, pro se
motions, briefs, or other correspondence will not be filed by the party if
represented by counsel.”).
                                        2.
      Because of the reasons stated above, and our conclusion herein, this court
will deny Presley’s motion to strike his response to counsel’s motion to withdraw
as counsel as moot.
                                       III.
      Because we find Presley was not rendered ineffective assistance of counsel
at the September 2008 hearing, we AFFIRM the judgment of the district court.

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                               No. 09-10046

We DENY his motion for release pending bail and DENY his motion to strike as
MOOT.




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                                  No. 09-10046

E. Grady Jolly, concurring specially,
      I concur in the result, but write separately to note that Presley brings a
claim for denial of counsel, yet we have treated his claim as one for ineffective
assistance of counsel. As we have said, Presley’s plea preserved one avenue of
appeal: ineffective assistance of counsel. The government, however, does not
point out the distinction between a denial of counsel claim and an ineffective
assistance of counsel claim, and has waived its right to hold Presley to his word.
United States v. Acquaye, 452 F.3d 380, 381-82 (5th Cir. 2006). I nonetheless
concur in the result, because Presley was not denied counsel at a critical stage
of the proceedings; the September 3 hearing was not critical because Presley has
already been granted two additional hearings on the same issue.




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