USA v. Everson, No. 08-30593 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-30593 Summary Calendar July 9, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LANCE EVERSON, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Louisiana No. 2:07-CR-118-1 Before SMITH, GARZA, and SOUTHWICK, Circuit Judges. PER CURIAM:* Lance Everson appeals his guilty-plea conviction, arguing that the district court abused its discretion by denying, without an evidentiary hearing, his mo* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 08-30593 tion to withdraw his plea. A decision not to hold a hearing on a motion to withdraw is reviewed for abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). Although a defendant is not entitled to an evidentiary hearing on a motion to withdraw, a hearing is required when the defendant alleges sufficient facts which, if proven, would justify relief. Id. (internal quotation and citation omitted). Everson s motion was brought under F ED. R. C RIM. P. 11(d)(2), which permits withdrawal after a plea has been entered and before sentencing if the defendant shows a fair and just reason based on the totality of the circumstances. Id. (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)). Absent the inferences Everson asks the courts to draw from the allegations in his motion, he did not offer sufficient facts to justify withdrawal of the plea; he presented only a belated motion based on the vague assertion of the reappearance of a potential witness. The court thus did not abuse its discretion. Powell, 354 F.3d at 370. Further, Everson has not shown that he would be entitled to relief under the totality of the Carr factors. In evaluating a motion to withdraw, no single Carr factor is determinative; instead, the court makes its decision based on the totality of the circumstances. See United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). The rationale for allowing a defendant to withdraw a guilty plea is to permit him to undo a plea that was unknowingly made at the time it was entered. The purpose is not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty. Carr, 740 F.2d at 345. Because Everson has failed to show that any of the Carr factors favored withdrawal, the refusal to hold an evidentiary hearing, even if error, was thus also harmless. See Powell, 354 F.3d at 370-71. The judgment of conviction is AFFIRMED. 2
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