IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40097

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PERRY JOE WICKS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CR-24-1

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Perry Joe Wicks appeals his guilty plea conviction of violating 18 U.S.C. 

§ 2422(b) by using interstate commerce to knowingly attempt to persuade, 

induce, and entice a minor to engage in sexual activity. Wicks expressly denied 

having any communication with a minor but admitted that he had email

communications with an adult in an attempt to persuade the adult to provide 

Wicks with a minor for sexual activity. To demonstrate a factual basis for 

* 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

December 5, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40097

Wicks’s plea, the Government introduced emails between Wicks and an 

undercover detective who posed as an adult intermediary who would provide 

Wicks with a 14-year-old girl for sexual activity at a hotel in exchange for $ 100. 

The arrangement was made, and Wicks was arrested at the hotel.

First, Wicks contends that his plea was not voluntary and knowing 

because he pleaded with the belief that he could present new forensic evidence 

on appeal regarding his computer and cellular phone. He asserts that he was 

misled at his rearraignment hearing by statements made by the district court 

and the Government that promised such an opportunity.

We review this argument for plain error only because it is raised for the 

first time on appeal. See United States v. Hughes, 726 F.3d 656, 659 (5th Cir. 

2013). A guilty plea involves the waiver of several constitutional rights and 

must be made knowingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 

242-44 (1969). A guilty plea is involuntary where it was induced by deception, 

misrepresentation, or an unfulfillable promise. United States v. Amaya, 111 

F.3d 386, 389 (5th Cir. 1997).

Wicks was not told that he could present additional evidence on appeal. 

Instead, the Government stated at his rearraignment hearing merely that his 

computer and cellular phone would not be destroyed upon forfeiture and would 

be available in the event of an appeal. In pleading guilty, Wicks stated that he 

understood he was waiving his right to a trial, including his right to crossexamine the Government’s witnesses, present his own witnesses, and require 

the Government to prove its case beyond a reasonable doubt. His stated 

willingness to waive those rights carries a strong presumption of verity. See 

Blackledge v. Allison, 431 U.S. 63, 74 (1977). Wicks has not shown any error, 

much less plain error, on this issue.

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Second, Wicks contends that the district court erred in denying his 

motion to withdraw his plea and not granting him a judgment of acquittal. The 

district court’s denial of a motion to withdraw a guilty plea is reviewed for 

abuse of discretion. Hughes, 726 F.3d at 659. After a district court has 

accepted a guilty plea, it may grant a motion to withdraw the plea before the 

defendant is sentenced if the defendant shows “a fair and just reason for 

requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In determining 

whether the defendant has met this burden, a court considers whether (1) the 

defendant has asserted his innocence, (2) withdrawal would prejudice the 

Government, (3) the defendant delayed in filing the motion to withdraw, (4) 

withdrawal would inconvenience the court, (5) close assistance of counsel was 

available to the defendant, (6) the plea was knowing and voluntary, and (7) 

withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 

339, 343-44 (5th Cir. 1984).

The district court found that the first and fourth factors weighed in 

Wicks’s favor while the other five factors weighed against him. Wicks does not 

brief any argument challenging the district court’s analysis of the five factors 

that were counted against him. He has thus waived any such argument. See 

United States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002). Instead, Wicks 

contends that the district court erred in denying his motion to withdraw his 

plea because the factual basis for his plea was insufficient to prove a § 2422(b) 

offense. He argues that a § 2422(b) conviction requires at least an attempt to 

communicate with a minor, even if only indirectly via an adult intermediary.

Wicks’s argument is unavailing. “[A] defendant who communicates 

solely with an adult intermediary can be held to violate § 2422(b).” United 

States v. Caudill, 709 F.3d 444, 447 (5th Cir.), cert. denied, 133 S. Ct. 2871 

(2013). Wicks attempts to distinguish Caudill on the ground that the 

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defendant in Caudill sought confirmation that the minor would engage in 

sexual activity whereas Wicks did not admit to seeking any such confirmation 

when he pleaded guilty. Contrary to Wicks’s contention, the emails introduced 

by the Government, without objection by Wicks, show that he asked the adult 

intermediary whether the minor would engage in various sexual acts. 

Furthermore, Wicks’s online communication with the adult intermediary to 

arrange a sexual encounter with a minor was sufficient to violate § 2422(b) 

“[w]hether [Wicks] intended to persuade, induce, or entice [the minor] to have

sexual contact when he met [her] at the hotel or he intended for the adult 

intermediary to persuade, induce, or entice [her] to have sexual contact with 

[Wicks] before he actually appeared at the hotel.” Caudill, 709 F.3d at 446. 

Wicks has not shown that the factual basis for his guilty plea was insufficient.

Last, Wicks complains that his trial counsel failed to conduct a forensic 

analysis of Wicks’s computer and did not inform Wicks that the court had 

authorized $ 2,400 for the defense to obtain such an analysis. To the extent 

Wicks is raising any claims that his trial counsel provided ineffective 

assistance, we decline to consider the claims without prejudice to collateral 

review because they were not raised in the district court and the record is not 

sufficiently developed to allow them to be fairly evaluated. See United States 

v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008).

The judgment of the district court is AFFIRMED.

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