     Case: 10-31229     Document: 00511610026         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 10-31229
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KENTRELL WASHINGTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-212-1


Before KING, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
        Kentrell Washington pleaded guilty to a superseding indictment charging
him with felon in possession of a firearm. Four months after his rearraignment
and two days prior to sentencing, Washington filed a motion to withdraw his
guilty plea. The district court denied Washington’s motion after an analysis of
the factors set forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.
1984). Washington appeals the district court’s ruling.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-31229

      This court reviews the 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). In reviewing the denial of a motion to withdraw a guilty plea, this court
considers the Carr factors: 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.
Carr, 740 F.2d at 343-44. Based on a totality of the circumstances, Washington
has failed to show that the district court abused its discretion in denying his
motion to withdraw his guilty plea. See McKnight, 570 F.3d at 645. Washington
did not raise his Sixth Amendment ineffective assistance of counsel claim based
on a conflict of interest before the district court. Accordingly, this court will not
consider the claim on direct appeal. See United States v. Aguilar, 503 F.3d 431,
436 (5th Cir. 2007). This does not prejudice Washington, however, from raising
the claim in a 28 U.S.C. § 2255 motion. See United States v. Higdon, 832 F.2d
312, 314 (5th Cir. 1987).
      Washington argues that the district court plainly erred in enhancing his
sentence under U.S.S.G. § 2K2.1(a)(2). Specifically, he asserts that there was
no documentation introduced to show that his two Texas convictions constituted
“controlled substance offenses” as defined by U.S.S.G. § 4B1.2. He contends that
his substantial rights were violated because his guideline range would have been
lower than the 77 to 96 months that the presentence report (PSR) calculated.
      Washington did not object to the PSR or the district court’s finding that he
had two prior convictions for controlled substance offenses. Accordingly, this
court reviews Washington’s argument for plain error. See United States v.
Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). The PSR was the only evidence
before the district court to support a finding that Washington was convicted of
two offenses that qualified as controlled substance offenses for purposes of

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                                 No. 10-31229

§ 2K2.1(a)(2). Thus, the district court committed a clear or obvious error in
assigning Washington’s offense level under § 2K2.1(a)(2). See Garza-Lopez, 410
F.3d at 273-75. This error affected Washington’s substantial rights because it
is impossible to tell from the record if Washington’s conviction for “Delivery of
a Controlled Substance Less Than 1 Gram Namely Cocaine” qualifies as a
controlled substance offense for purposes of § 2K2.1. See United States v. Price,
516 F.3d 285, 288-89 (5th Cir. 2008); Garza-Lopez, 410 F.3d at 274-75.
Additionally, the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. McCann, 613 F.3d 486, 503
(5th Cir. 2010). Accordingly, Washington’s sentence is vacated and remanded
for resentencing.
      The Government has filed a motion to strike a portion of Washington’s
reply brief in which Washington sought to introduce new evidence before this
court. The motion is granted. See United States v. Smith, 493 F.2d 906, 907 (5th
Cir. 1974).
      CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED
FOR RESENTENCING; MOTION TO STRIKE GRANTED.




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