United States v. Powell ( 2023 )

Case: 22-50294 Document: 00516732688 Page: 1 Date Filed: 05/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50294
Summary Calendar FILED
____________ May 1, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Darwin Powell,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CR-68-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Darwin Powell challenges his conviction for conspiracy to distribute
and possess with intent to distribute five kilograms or more of cocaine and
his below-Guidelines sentence of 420 months of imprisonment. He argues
that the district court erred by denying his motions to withdraw his guilty plea
and for reconsideration. We review the denials of both motions for an abuse
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50294
of discretion. See United States v. Strother, 977 F.3d 438, 443 (5th Cir. 2020);
United States v. Rabhan, 540 F.3d 344, 346-47 (5th Cir. 2008). “A district
court abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” Strother, 977 F.3d at 443 (citation
omitted).
“A defendant may withdraw a guilty plea after the district court
accepts the plea, but before it imposes a sentence, by showing a ‘fair and just
reason’ for seeking withdrawal.” Strother, 977 F.3d at 443 (quoting Fed.
R. Crim. P. 11(d)(2)(B)). The defendant has the burden of proof. Strother,
977 F.3d at 443. This court considers seven factors, namely, whether (1) the
defendant asserted his innocence, (2) withdrawal would prejudice the
Government, (3) the defendant delayed in filing the motion, (4) the
withdrawal would substantially inconvenience the court, (5) close assistance
of counsel was available, (6) the plea was knowing and voluntary, and (7)
withdrawal would waste judicial resources. Id. (citing United States v. Carr,
740 F.2d 339, 343-44). However, these factors “are non-exclusive,” United
States v. Urias-Marrufo, 744 F.3d 361, 364 (5th Cir. 2014), and no one factor
or combination of factors is dispositive. Strother, 977 F.3d at 443.
The district court found that the assertion-of-innocence and
voluntariness-of-plea factors weighed against Powell based primarily on the
factual basis to which he agreed as part of his plea agreement and his
testimony under oath at rearraignment. See Blackledge v. Allison, 431 U.S. 63,
74 (1977) (“Solemn declarations in open court carry a strong presumption of
verity.”). Although he cites his testimony from the hearing on his motion to
withdraw that he was innocent and did not understand the meaning of the
plea agreement, the district court found this testimony incredible, and he
does not attempt to show that the district court clearly erred this regard. See
Strother, 977 F.3d at 443.
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While Powell contends that some of the Government’s claims of
prejudice lack specificity and are unconvincing, he does not meaningfully
address the district court’s finding that the Government would be prejudiced
because it had spent substantial time and resources negotiating a series of
property forfeitures contained in the plea agreement; he thus fails to show
that the district court clearly erred in weighing this factor against him. See
Strother, 977 F.3d at 443. Likewise, we defer to the district court’s
determination whether it would have been inconvenienced and whether
judicial resources would be wasted. See United States v. McKnight, 570 F.3d
641, 650 (5th Cir. 2009).
Despite that counsel provided close assistance during plea
negotiations and at rearraignment, Powell complains that his attorney failed
to file a motion to withdraw as soon as Powell requested that he do so. To
the extent that Powell claims that his attorney rendered ineffective assistance
by failing to timely file a motion to withdraw, “[i]neffective assistance is a
basis for invalidating a conviction under the Sixth Amendment and is not,
strictly speaking, relevant to the decision of whether Defendant was denied
close assistance of counsel under Carr analysis.” See Urias-Marrufo, 744
F.3d at 365. Our decision does not prejudice Powell’s right to raise an
ineffective assistance of counsel claim on this basis in a subsequent 28 U.S.C.
§ 2255 proceeding. See McKnight, 570 F.3d at 648. Powell fails to show that
the district court clearly erred in finding that all of the Carr factors weighed
against him except for the timeliness of his motion to withdraw. See Strother,
977 F.3d at 443.
Powell does not meaningfully address, and has therefore abandoned
any challenge to, the district court’s holding that he waived the attorney-
client privilege with regard to statements contained in his former attorney’s
affidavit. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Even if
Powell’s rights under the Confrontation Clause extend to the hearing on his
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motion to withdraw, the district court held that any error in admitting the
affidavit was harmless because its consideration of the Carr factors would not
have been impacted if the affidavit had been excluded. See United States v.
Noria, 945 F.3d 847, 853 (5th Cir. 2019) (holding that violations of
Confrontation Clause are subject to harmless error analysis). Powell does not
challenge that holding on appeal. See Yohey, 985 F.2d at 225.
Powell fails to show the district court abused its discretion by denying
his motion for reconsideration without first conducting an evidentiary
hearing regarding whether he voluntarily waived his Fifth and Sixth
Amendment rights before making inculpatory statements to law enforcement
officers. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
Finally, in arguing that Carr was decided incorrectly because it improperly
limits the discretion of the district court in applying Rule 11(d)(2)(B), Powell
ignores that the Carr factors are not exclusive. See Urias-Marrufo, 744 F.3d
at 364. To the extent that he argues that Carr should be overruled, he
properly concedes that his argument is foreclosed. See United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
AFFIRMED.
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