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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30666

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOHNNIE SIMS

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:05-CR-297-3

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Johnnie Sims pled guilty to conspiracy to possess cocaine and marijuana

with intent to distribute, conspiracy to murder a federal agent, being a felon in

possession of a firearm, and possession of a firearm in furtherance of a drug

trafficking crime or a crime of violence. On appeal, Sims argues that the factual

basis supporting his guilty plea to possession of a firearm in furtherance of a

drug trafficking crime or crime of violence was inadequate and that the district

court erred in refusing to permit Sims to withdraw his guilty plea. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2009

Charles R. Fulbruge III

Clerk
No. 08-30666

2

A superseding indictment charged Sims, Chris Walker, and another

individual with engaging in a drug conspiracy involving the possession of cocaine

and marijuana with intent to distribute. The indictment also alleged that

Walker and Sims had conspired to murder a U.S. Drug Enforcement

Administration agent. 

The factual basis document was signed by Sims, his counsel, and the

prosecutor. It established that Walker, who is Sims’s cousin, was arrested for

selling drugs. Sims spoke with Walker multiple times while Walker was in

prison. The two men schemed to murder the DEA agent responsible for Walker’s

arrest. They believed that without the agent to testify against Walker, Walker

would be released. DEA agents discovered the plan and conducted a sting

operation. Sims met an undercover officer and attempted to hire him to kill the

agent. On the day of his arrest, Sims gave the officer $1,000 as a down payment.

After Sims was arrested, a loaded handgun and small quantities of marijuana

and cocaine were found in Sims’s vehicle. Sims spoke with authorities after his

arrest and explained that Walker had been his source of drugs and that Sims

was responsible for collecting money from members of Walker’s drug trafficking

organization to pay for the murder of the agent.

Sims first contends that the factual basis was inadequate to support his

plea to possession of a firearm in furtherance of drug trafficking crime or crime

of violence. “Before entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).

“The factual basis for the guilty plea must appear in the record . . . and must be

sufficiently specific to allow the court to determine that the defendant’s conduct

was within the ambit of that defined as criminal.” United States v.

Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006) (internal quotation marks and

citation omitted). An indictment, if sufficiently specific, can serve as the sole

source of the factual basis for a guilty plea. United States v. Hildenbrand, 527
No. 08-30666

3

F.3d 466, 475 (5th Cir.), cert. denied, 129 S. Ct. 437 (2008). If an indictment is

not sufficient to serve as the factual basis for a guilty plea, this court may

examine the entire record to determine whether there was a factual basis for the

defendant’s plea. United States v. Vonn, 535 U.S. 55, 74-76 (2002).

Sims argues that the factual basis was inadequate because it did not show

that the gun found in his car was used in furtherance of a drug trafficking crime

or a crime of violence. A firearm is possessed in furtherance of a drug trafficking

offense if it “furthers, advances, or helps forward the drug trafficking offense.”

United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000). Mere

presence of a firearm is not enough. Id. at 414. The government is required to

provide evidence “specific to the particular defendant, showing that his or her

possession actually furthered the drug trafficking offense.” Id. A nonexhaustive

list of factors to be considered includes these:

the type of drug activity that is being conducted, accessibility of the

firearm, the type of the weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun is

loaded, proximity to drugs or drug profits, and the time and

circumstances under which the gun is found.

Id. at 414-15. 

A number of our precedents hold that possession of a firearm, including an

unloaded one, in close proximity to a large amount of drugs is sufficient to show

that a firearm was possessed in furtherance of a drug trafficking crime. See, e.g.,

United States v. Nunez-Sanchez, 478 F.3d 663 (5th Cir. 2007); United States v.

Charles, 469 F.3d 402 (5th Cir. 2006). The evidence here is that Sims left the

gun in the car during his meeting with the supposed contract killer and did not

carry it with him. There is no direct evidence that he ever used or carried the

gun while selling drugs. The gun was found in the same car as a small amount

of drugs that Sims argues was only for personal use. The factual basis does not

describe the location of the gun in relation to the drugs or whether the gun was
No. 08-30666

4

easily accessible to Sims. It is from these gaps in the proof that Sims finds the

factual basis to be deficient.

In considering his argument, we start with the fact that Sims did not

object to the factual basis of his guilty plea. He concedes that our review is

therefore for plain error. See United States v. Palmer, 456 F.3d 484, 491 (5th

Cir. 2006). Plain error review consists of four elements: (1) there must be an

error; (2) the error must be clear or obvious; (3) the error must affect the

appellant’s substantial rights; and (4) when the first three requirements are met,

“the court of appeals has the discretion to remedy the error—discretion which

ought to be exercised only if the error seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Puckett v. United States, 129 S. Ct.

1423, 1429 (2009) (internal quotation marks and citations omitted) (emphasis

in original). Therefore, even if Sims can show that the district court erred in

accepting his guilty plea, he must show that the error was plain.

For an error to be a plain one, it must be obvious; it is not enough that the

error is “subject to reasonable dispute.” Id. We have noted that “errors are plain

if they are so conspicuous that the trial judge and prosecutor were derelict in

countenancing [them], even absent the defendant’s timely assistance in detecting

[them].” United States v. Maldonado, 42 F.3d 906, 912 (5th Cir. 1995) (internal

quotation marks and citations omitted) (alterations in original). Even if the

district court may have erred in accepting his guilty plea, the shortcomings in

the factual basis were not so conspicuous that the trial judge and prosecutor

were derelict in countenancing them. We are not faced with a written factual

basis that affirmatively disproves some element of the offense. Instead, what

the government might have been able to prove, or perhaps just prove better, was

never demanded through a defense objection.

The district court did not plainly err in accepting Sims’s guilty plea.
No. 08-30666

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Sims also contends that the district court erred in refusing to permit him

to withdraw his guilty plea. Sims pled guilty in November 2006. In April 2008,

he filed a motion to withdraw his guilty plea. Sims argues that the court was

aware of his desire to withdraw his plea in July 2007. Without holding a

hearing, the district court denied Sims’s motion to withdraw his guilty plea.

 Following the district court’s acceptance of his guilty plea, Sims did not

have an absolute right to withdraw that plea. See United States v. Stephens, 489

F.3d 647, 654 (5th Cir. 2007). The court could have allowed withdrawal,

however, if Sims had shown that his request was supported by a fair and just

reason. See Fed. R. Crim. P. 11(d)(2). The district court has broad discretion in

determining whether to permit a defendant to withdraw his guilty plea. United

States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). A number of illustrative

factors are considered in determining whether a fair and just reason has been

shown: 

(1) whether or not the defendant has asserted his innocence; (2)

whether or not the government would suffer prejudice if the

withdrawal motion were granted; (3) whether or not the defendant

has delayed in filing his withdrawal motion; (4) whether or not the

withdrawal would substantially inconvenience the court; (5)

whether or not close assistance of counsel was available; (6) whether

or not the original plea was knowing and voluntary; and (7) whether

or not the withdrawal would waste judicial resources; and, as

applicable, the reason why defenses advanced later were not

proffered at the time of the original pleading, or the reasons why a

defendant delayed in making his withdrawal motion.

Id. at 343-44 (citations omitted). If, applying the Carr factors, “a defendant has

alleged facts that would justify relief, a court must hold an evidentiary hearing

on the matter.” United States v. Washington, 480 F.3d 309, 316 (5th Cir. 2007).

Sims’s primary arguments supporting his motion to withdraw his guilty

plea are that he has asserted his innocence to the drug conspiracy charges and

that problems communicating with his defense counsel made his plea
No. 08-30666

6

involuntary. However, at his rearraignment, Sims responded affirmatively

when he was asked whether he understood the charges and whether he had

committed the acts as charged. “Solemn declarations in open court carry a

strong presumption of verity,” and Sims has not overcome that presumption.

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Additionally, though Sims and his

original defense counsel had disagreements, Sims agreed in court that he had

discussed his case with his attorney and was satisfied with her services.

Moreover, withdrawal would prejudice the government, which would have to

prepare for a new trial on all four counts, including the one for conspiracy to

commit murder, and Sims delayed filing his motion to withdraw his guilty plea

for eighteen months. The district court did not abuse its discretion in denying

Sims’s motion to withdraw his guilty plea without providing a hearing.

The district court’s judgment is AFFIRMED.