* 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should not be published and is not precedent except under the limited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. 07-30391

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EARNEST FELICE

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:06-CR-20021-1

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In August 2006, Earnest Felice (Felice) pleaded guilty to possession of

child pornography and was sentenced to 120 months of imprisonment and

supervised release for life. While being interviewed by the probation office

during the preparation of Felice’s presentence investigation report, Felice stated

“I did nothing wrong. I am not guilty.” When asked by the probation officer why

he pleaded guilty, Felice stated that he was threatened and coerced. In

December 2006, the district court received a letter from Felice. In the letter,

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-30391

2

Felice made a number of allegations concerning his prior plea. The letter stated

that he was coerced by his retained attorney, Mitchell Evans (“Evans”), and the

prosecutors to plead guilty. Felice asserted that his guilty plea was entered in

response to threats which created fear for the safety of his family and his life.

Felice stated that he was told that if he did not say exactly what his attorney

told him to say, and if he did not accept the plea agreement, the judge would

order his immediate incarceration and additional indictments would be filed

against him. Felice alleged that Evans failed to file a motion to withdraw his

guilty plea when Felice requested it, that Evans failed to consider exculpatory

evidence provided by Felice, and that Evans failed to speak with witnesses who

could testify on Felice’s behalf. The letter also requested that the district court

allow Evans to withdraw so the court could appoint Felice a public defender.

The district court held a hearing based on Felice’s letter, treating it as a

motion for appointment of counsel to replace Evans. In court, Evans responded

to the judge’s questions by denying the representations made in Felice’s letter.

Evans told the court that he never knew of any threats or coercion, and that he

feltit was apparentfrom the plea hearing that Felice’s guilty plea was freely and

voluntarily given. While at this hearing, Felice did not provide any further

factual detailto supportthe claims made in his letter. The district court allowed

Evans to withdraw and appointed a public defender to represent Felice.

Felice’s newly appointed counsel filed a motion to withdraw the plea. The

motion tracked the content of Felice’s earlier letter, relying on Felice’s assertion

of innocence, his claim that the original plea was coerced, and that his prior

counsel was ineffective. According to the motion, Evans again denied Felice’s

allegations when interviewed by Felice’s appointed attorney. The motion did not

provide any new factual content to support Felice’s allegations beyond that

which was in Felice’s original letter. The district court denied the motion to

withdraw Felice’s guilty plea without holding a hearing. Felice argues on appeal

that the district court erred in denying his motion to withdraw his guilty plea
No. 07-30391

3

without holding a hearing. He asks this court to vacate the ruling denying his

motion to withdraw and to remand for a hearing on the motion.

A defendant does not have an absolute right to withdraw his guilty plea.

See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). The defendant

bears the burden of showing a “fair and just reason”for the withdrawal.SeeFED.

R. CRIM. P. 11(d)(2)(b); Powell, 354 F.3d at 370. A defendant is not entitled to a

hearing on his motion to withdraw, but a hearing is “required when the

defendant alleges sufficient facts which, if proven, would justify relief.” Powell,

354 F.3d at 370. We review the district court’s decision to deny the motion and

its decision not to hold an evidentiary hearing for an abuse of discretion. See id.

“Any errors made in failing to hold evidentiary hearings are subject to the

harmless error standard.” Id.

The district court analyzed Felice’s motion to withdraw under the factors

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

factors include whether: (1) the defendant has asserted his innocence; (2) the

government would be prejudiced; (3) the defendant delayed in requesting the

withdrawal; (4) the court would be substantially inconvenienced; (5) the close

assistance of counsel was available; (6) the plea was knowing and voluntary; (7)

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. (footnotes and citations omitted). The district court focused on

Felice’s assertion of innocence, his claims of coercion, and the delay in filing his

motion. But the district court need not expressly consider all of the factors laid

outin Carr. See Powell, 354 F.3d at 370 (stating that the district court’s decision

is based on the totality of the circumstances, and the district court is not

required to make specific findings on each of the factors).

On appeal, Felice argues that we should treatthe allegations in his motion

as true when evaluating the district court’s denial. But Felice fails to
No. 07-30391

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differentiate between conclusory allegations, such as “I was coerced,” and the

“sufficient facts” required under Powell. Because Felice’s motion relies on

conclusory allegations which find no support in the record, he did not provide

“sufficientfacts which, if proven, would justify relief”from his earlier guilty plea.

Accordingly, the district court acted within its discretion in denying the motion

to withdraw without holding a hearing.

Felice points to his assertion of innocence to supportthe withdrawal of his

plea. As to his claim of innocence, Felice has made only a bare assertion that he

“did nothing wrong.” He points to no facts that would support any theory of

innocence. During his plea colloquy, he admitted to the factual basis for his plea,

and he has never denied that hundreds of pornographic images of children were

found on his personal computer and computer disks in his residence. A mere

assertion of innocence is not sufficient to contradict the defendant’s sworn

admission of guilt at a plea hearing. See United States v. Rasmussen, 642 F.2d

165, 166-69 (5th Cir. 1981); see also Carr, 740 F.2d at 344 (noting that if an

assertion of innocence were enough to withdraw a guilty plea, withdrawal would

be an automatic right).

Felice contends that if he could prove that his attorney was ineffective, he

would be entitled to withdraw his plea. See Hill v. Lockhart, 474 U.S. 52, 59

(1985) (holding that ineffective assistance can render a guilty plea involuntary).

Felice alleged that his counsel was ineffective because he did not consider

evidence provided by Felice and because he refused to speak to witnesses. See

Washington v. Watkins, 655 F.2d 1346, 1363-64 (5th Cir. 1981) (recognizing that

ineffective assistance claims based on uncalled witnesses require a heavy

showing by the petitioner because the court is forced to make a hypothetical

determination of how an uncalled witness may have testified). Felice’s motion

did not identify the allegedly useful witnesses, nor did it state what exculpatory

evidence his counsel ignored. See United States v. Green, 882 F.2d 999, 1003

(5th Cir. 1989) (“A defendant who alleges a failure to investigate . . . must allege
No. 07-30391

5

with specificity what the investigation would have revealed.”). Without more,

there was no need for a hearing on Felice’s bare allegations of ineffective

assistance.

Felice also argues that he should be given the chance to establish at a

hearing that his plea was coerced. Felice alleged in his motion that he pleaded

guilty in response to coercive intimidation and threats which created fear for the

safety of his family and his life. With respect to this point, we note that while

the district court did not hold a hearing after receiving the motion filed by

Felice’s appointed counsel, it did hold a hearing based on Felice’s letter. Felice’s

letter included the same empty allegations of threats and coercion as did his

later motion. At the hearing prompted by Felice’s letter, his former attorney,

Evans, stated in open court that he had no knowledge of any threats or coercion.

While atthe hearing, Felice did not respond to the statements by his counsel nor

did Felice provide any further factual information to support the allegations

made in his letter. In its order denying the motion to withdraw his plea, the

district court noted that during his colloquy, Felice acknowledged his plea was

freely and voluntarily given, and that no one had coerced or threatened him to

induce his guilty plea. “It is well established that solemn declarations in open

court carry a strong presumption of verity.” United States v. Lampaziane, 251

F.3d 519, 524 (5th Cir. 2001) (internal quotation marks and citation omitted).

The only threats more specifically identified in Felice’s motion were threats that

further charges would be brought against him if he did not accept his plea.

Threats regarding additional charges or enhanced penalties are accepted

practices in plea negotiations and are not considered the kinds of threats which

undermine the voluntariness of a guilty plea. See 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). Felice’s claims of threats and coercion did not require a hearing

on his motion to withdraw his plea.
No. 07-30391

6

Finally, Felice argues that the district court erred in treating his motion

as delayed under Carr’s third factor. Taking the time of filing to be when

Felice’s appointed counsel actually filed his motion to withdraw the guilty plea,

the district court found that Felice allowed more than six months to elapse

between his guilty plea and his motion for withdrawal. We note that the district

court received Felice’s original letter, which outlined the basis for his desire to

withdraw his plea, some four months earlier than the eventual motion filed by

his appointed counsel. Further, Felice argues that his original delay resulted

from because Evans would not file a motion to withdraw Felice’s plea. Even

assuming Felice’s motion was filed in a timely manner, we do not believe the

district court would have been compelled to hold a hearing on the motion.

Powell requires that “sufficient facts” be alleged that if proved would justify

relief from the earlier guilty plea. Powell, 354 F.3d at 370. Regardless of when

Felice filed his motion, the motion barely contains any facts; and no record

evidence supports Felice’s conclusory allegations. As such, the district court did

not abuse its discretion in denying Felice’s motion to withdraw his guilty plea

without holding a hearing.

We AFFIRM the district court’s denial of Felice’s motion to withdraw his

guilty plea.