* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40692

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KELVIN BERNARD WORTH,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 2:05-CR-3-3

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Kelvin Bernard Worth pleaded guilty to one count of

possession of crack cocaine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). Worth contends that the

district court erred in denying his motion to withdraw his guilty

plea and in imposing an enhancement for obstruction of justice

pursuant to U.S.S.G. § 3C1.1. Finding no error, we affirm.

With respect to Worth’s motion to withdraw, Worth bore the

burden of showing a fair and just reason for withdrawing his

plea, and we review the district court’s denial for an abuse of
No. 06-40692

-2-

discretion in light of the so-called “Carr factors.” See United

States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citing

United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)). We

keep in mind that a defendant’s statements under oath at a plea

hearing are entitled to a presumption of verity. United States

v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). 

Worth first contends that the Government showed him a

videotape that purportedly depicted Worth engaged in a drug

transaction corresponding to the count to which he pleaded

guilty, which he later discovered to be untrue. Worth asserts

that he was manipulated and coerced by this incorrect

information. Worth offered no evidence in support of his claim,

however. Although he asserts that statements by his counsel

corroborate his allegation, those statements were vague and

offered no indication as to when or how it was discovered that

Worth was not, as he alleges, on the videotape in question. 

Worth also argues that the Government’s counsel conceded

that there was a mixup, but a fair reading of the transcript

contradicts this assertion, as it is clear that counsel was

simply attempting to explain the change in the count to which

Worth pleaded guilty. Although Worth argues that the district

court should have allowed him to view the videotape, he fails to

explain why he did not request the videotape before the court

held an evidentiary hearing on the motion or before the court

ruled on the motion, despite ample time to do so. The district
No. 06-40692

-3-

court did not err in denying his untimely request for production

of the videotape. See, e.g., United States v. Atkins, 528 F.2d

1352, 1357-58 (5th Cir. 1976). 

Worth’s argument that the district court improperly denied

his motion as a penalty for perjury during the trial of codefendants Jeffrey Holland and Michael Andrews is likewise

meritless. The district court made it clear when it ruled on the

motion that its decision was based on Worth’s trial testimony

regarding his own involvement in the drug conspiracy, his sales

of drugs to Andrews, and his ratification of his plea agreement. 

The sentencing transcript as a whole does not support Worth’s

contention that the court’s reference to trial testimony was a

reference to its finding that the testimony was perjured. 

Worth also contends that his plea was not voluntary because

the Government threatened to charge him with all the drugs in the

indictment as well as fabricated drugs. This assertion is

contrary to his sworn testimony at the plea hearing that he was

not coerced or threatened, and Worth offers no evidence to rebut

the presumption that his sworn statements were true. In

addition, threats regarding additional charges or enhanced

penalties are accepted practices in plea negotiations. See,

e.g., Frank v. Blackburn, 646 F.2d 873, 878-79 (5th Cir. 1980)

(en banc), modified on other grounds, 646 F.2d 902 (5th Cir.

1981). 
No. 06-40692

-4-

We reject Worth’s contention that he did not receive the

close assistance of counsel. He offered no evidence in support

of his claims regarding his counsel’s assistance. 

Worth cites no other factors under Carr in support of his

claim. Considering the totality of the circumstances, we

conclude that the district court did not abuse its discretion in

denying the motion to withdraw. 

Worth next challenges the imposition of the § 3C1.1

enhancement. The Government argues that Worth waived his right

to appeal. Worth counters that the district court informed him

at sentencing that he could appeal his sentence and that the

Government failed to object. We have rejected nearly identical

arguments before. See United States v. Melancon, 972 F.2d 566,

568 (5th Cir. 1992). We see no reason that a different result

should obtain here. 

The record of the plea colloquy demonstrates that Worth

knowingly and voluntarily waived his right to appeal his sentence

on all grounds except in the case of a sentence exceeding the

statutory maximum. See United States v. Portillo, 18 F.3d 290,

292 (5th Cir. 1994) (discussing voluntariness of appeal waiver). 

Worth’s challenge to the enhancement falls squarely within the

scope of his waiver. Accordingly, he is barred from raising it

on appeal.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.