United States Court of Appeals

for the Fifth Circuit

No. 20-40760

United States of America, 

Plaintiff—Appellee, 

versus

Joseph Church,

Defendant—Appellant. 

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:17-CR-25

Before Higginson, Willett, and Ho, Circuit Judges.

Per Curiam:*

Joseph Church pleaded guilty to one count of conspiracy to commit 

sex trafficking and three counts of sex trafficking of minors. On appeal, 

Church contends that the district court abused its discretion by refusing to 

permit him to withdraw his guilty plea. We affirm as harmless any district 

court error denying Church’s motion to withdraw his plea, but we remand so 

that the district court can correct errors in the judgment. 

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2023

Lyle W. Cayce

Clerk

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I.

Church and several others were indicted for various sex trafficking 

offenses. Count one charged Church with conspiracy to commit sex 

trafficking of persons “knowing[ly] and in reckless disregard for the fact that 

means of force, fraud, and coercion would be used to cause these persons to 

engage in commercial sex acts and that the persons, whom defendants had a 

reasonable opportunity to observe, had not attained the age of 18 years.” See

18 U.S.C. §§ 1594(c), 1591(a)(1), (a)(2), (b)(1), (b)(2), and (c). Counts two, 

three, and four charged Church with sex trafficking of minors, and aiding and 

abetting, “knowing[ly] and in reckless disregard of the fact that (1) means of 

force, threats of force, fraud, and coercion . . . would be used to cause [the 

minor] to engage in a commercial sex act, and that (2) [the minor], whom 

defendants had a reasonable opportunity to observe, had not attained the age 

of 18 years.” See id. § 1591(a), (b), and (c). 

In February 2019, after deciding to change his plea to guilty, Church 

appeared with counsel for rearraignment. At the rearraignment, the court 

instructed the government to explain the charges to which Church was 

pleading guilty, the potential consequences of those charges, and the facts 

that the government expected to prove at trial. In doing so, the government 

stressed that Church was not pleading guilty to the use of force, fraud, or 

coercion:

I just want to be very clear on the record, Your Honor, that the 

provisions in Counts Two, Three and Four that the defendant 

is pleading to is the subsection that contemplates that the 

individuals were under the age of 18 and not via force, fraud or 

coercion, because that has an impact on the sentencing 

guidelines. And I want to be very clear even as to Count One, 

that it’s a conspiracy to commit sex trafficking of minors, not 

by force, fraud or coercion. 

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The government attempted to make clear that Church was pleading guilty 

under § 1591(b)(2) (10-year mandatory minimum for sex trafficking of 

minors), not under § 1591(b)(1) (15-year mandatory minimum for sex 

trafficking by means of force, fraud, or coercion).

The district court accepted Church’s guilty plea. During the plea 

colloquy, the court confirmed that Church understood the terms of the plea 

agreement and the possible consequences of his guilty plea. Church also 

agreed to the facts that the government would prove against him at trial.

In May 2019, the presentence investigation report (PSR) was 

disclosed to the parties. In the PSR, the probation officer calculated a base 

offense level of 34, on the erroneous view that Church intended to plead

guilty under § 1591(b)(1). See U.S.S.G. § 2G1.3(a)(1) (setting a base offense 

level of 34 for defendants convicted under § 1591(b)(1)). The probation 

officer then determined that the total offense level exceeded 43. Under the 

Sentencing Guidelines, offense levels above 43 are treated as level 43 and 

thus carry an advisory range of life imprisonment. U.S.S.G. Ch. 5, Pt. A, cmt. 

n.2.

In October 2019, Church filed objections to the PSR. Among other 

things, Church argued that the base offense level should have been 30, not 

34, because he pleaded guilty under § 1591(b)(2), not § 1591(b)(1). The 

probation officer declined to revise the base level calculation.

In December 2019, Church appeared for sentencing. Before the 

district court could rule on Church’s objections to the PSR, Church advised 

the court that he wished to withdraw his guilty plea. The court postponed 

sentencing so that the parties could prepare briefs on the motion to withdraw. 

In his brief, Church argued, among other things, that “he is innocent 

of any sexual malfeasance toward the minors subject to the allegations” and 

that he did not use any force, fraud, or coercion. Church also claimed that 

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his plea was not knowing and voluntary because he believed that he was 

pleading guilty under § 1591(b)(2), not § 1591(b)(1). In its response brief, the 

government agreed with Church that the probation officer erred by using § 

1591(b)(1) to calculate the base offense level. But the government also noted 

that a base level of 30 still yields a total offense level of 43 in this case. So the 

advisory range under the Guidelines would be life imprisonment regardless 

of which base level is used.

After a hearing, the district court denied Church’s motion to 

withdraw his guilty plea. Several months later, at the sentencing hearing, the 

court also overruled Church’s objection to the PSR’s base offense level. The 

court then accepted the PSR’s total offense level of 43. But the court did not 

impose the advisory life sentence—it departed downward and sentenced 

Church to 400 months.

The written judgment that followed similarly describes Church’s 

conviction on count one as “[c]onspiracy to commit sex trafficking of minors 

by force, fraud, or coercion.” In other words, the judgment wrongly reflects 

that Church pleaded guilty under § 1591(b)(1).

II.

A.

Church’s plea agreement includes an appeal waiver that reserves only 

the right to assert claims of ineffective assistance of counsel. The 

government argues that the waiver bars this appeal. 

We disagree. Appeal waivers “cannot be enforced to bar a claim that 

the . . . plea agreement . . . was unknowing or involuntary.” United States v. 

Carreon-Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012) (quotations omitted). 

And that’s precisely what Church argues on appeal—that his guilty plea was 

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unknowing and involuntary because he did not understand the nature of the 

charges to which he was pleading guilty.

Accordingly, the waiver does not bar this appeal. We therefore turn 

to the merits.

B.

“A district court’s denial of a motion to withdraw a guilty plea is 

reviewed for abuse of discretion.” United States v. Lord, 915 F.3d 1009, 1013 

(5th Cir. 2019). The burden is on the defendant to establish a “fair and just 

reason” for withdrawing the plea. Id. at 1014 (quotations omitted). Seven 

factors guide the analysis: (1) whether the defendant asserted his innocence; 

(2) whether withdrawal would prejudice the government; (3) whether the 

defendant delayed in filing the motion to withdraw; (4) whether withdrawal 

would substantially inconvenience the court; (5) whether the defendant had 

the benefit of close assistance of counsel; (6) whether the guilty plea was 

knowing and voluntary; and (7) whether withdrawal would waste judicial 

resources. Id. (citing United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 

1984)). The district court should consider the totality of the circumstances, 

but it need not “make explicit findings as to each” factor. Id. 

Here, the district court did not abuse its discretion by denying 

Church’s motion to withdraw his guilty plea. Church unequivocally 

acknowledged as true the facts that the government would prove against him 

at trial; he was represented by counsel throughout the process; and he did 

not seek to withdraw his guilty plea until ten months after the rearraignment 

and seven months after the PSR was prepared. We have found that much 

shorter delays weigh against the defendant. See, e.g., United States v. Thomas, 

13 F.3d 151, 153 (5th Cir. 1994) (six-week delay); United States v. Harrison, 

777 F.3d 227, 237 (5th Cir. 2015) (five-week delay); Carr, 740 F.2d at 345 

(three-week delay). 

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The record also reflects that Church entered a knowing and voluntary 

guilty plea under §§ 1591(a), (b)(2), and 1594(c) based on the age of the 

victims. To be sure, the PSR and the judgment describe that Church pleaded 

guilty to the use of force, fraud, or coercion, leading the district court to use

§ 1591(b)(1) to calculate the base offense level. The government concedes 

that this was an error.

But as the government stresses, Church would have faced a total 

offense level of 43 even if the PSR used the correct base level. Church does 

not claim otherwise. Nor does he claim that the error in the PSR tainted his 

ultimate sentence. After all, the district court departed downward from the 

Guidelines—which called for a life sentence—by sentencing Church to 400 

months. Simply put, Church’s sentence does not reflect that he is being held 

responsible for a crime to which he did not plead guilty. 

We thus conclude that any error as to the knowing and voluntary 

nature of Church’s plea as to count one was harmless. See Fed. R. Crim. P. 

11(h).

We do note, however, that there are errors in the written judgment 

that require correction. See 28 U.S.C. § 2106; United States v. Gomez Gomez, 

23 F.4th 575, 577–78 (5th Cir. 2022) (remanding under 28 U.S.C. § 2106 to 

correct a judgment that should have been entered under one subsection 

rather than another). The written judgment for count one cites § 1591(b)(1) 

and describes the offense of conviction as “[c]onspiracy to commit sex 

trafficking of minors by force, fraud, or coercion.” The district court should 

correct these two errors on remand. See United States v. Ballardo-Ramos, No. 

21-40306, 2022 WL 358312, at *1 (5th Cir. Feb. 7, 2022) (remanding for 

correction under 28 U.S.C. § 2106 because “[t]he judgment lists his 

conviction as falling under 8 U.S.C. § 1326(b)(2), [but t]he judgment should 

. . . list 8 U.S.C. § 1326(b)(1) . . . as the offense of conviction”). 

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* * *

We affirm the district court’s denial of the motion to withdraw the 

guilty plea. We remand for the district court to correct the errors in the 

written judgment. 

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