IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30813

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLYDE SISTRUNK, also known as Angel Sistrunk,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:08-CR-256-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Clyde Sistrunk appeals his conviction for possession

with intent to distribute 3,4-methylenedioxymethamphetamine (MDMA). He

asserts that he moved to withdraw his guilty plea at the sentencing hearing and

that the district court abused its discretion in failing to hold an evidentiary

hearing on the basis for his request and in denying the motion.

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

for abuse of discretion.” United States v. Powell, 354 F.3d 362, 370 (5th Cir.

United States Court of Appeals

Fifth Circuit

F I L E D

October 19, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-30813

2003). Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may

withdraw his plea after the district court has accepted it, but before the

imposition of sentence, if the defendant can show “a fair and just reason for

requesting the withdrawal.” District courts should consider seven factors when

ruling on a motion to withdraw a guilty plea: “(1) whether the defendant

asserted his innocence, (2) whether withdrawal would prejudice the government,

(3) whether the defendant delayed in filing the motion, (4) whether withdrawal

would inconvenience the court, (5) whether adequate assistance of counsel was

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

(7) whether withdrawal would waste judicial resources.” United States v.

Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (citing United States v. Carr, 740

F.2d 339, 343-44 (5th Cir. 1984)).

Sistrunk does not address the Carr factors. He never asserted his

innocence; on the contrary, he specifically admitted that he possessed with

intent to distribute 50,000 MDMA pills. Sistrunk has pointed to nothing in the

record to show that his guilty plea was not knowing and voluntary; and we have

held that, to the extent a defendant’s challenge to his plea would necessitate

consideration of evidence outside the record, “a direct appeal is not the proper

avenue for raising such a claim.” United States v. Bell, 966 F.2d 914, 918 (5th

Cir. 1992). In addition, Sistrunk specifically acknowledged at his rearraignment

that he had ample opportunity to discuss his case with his attorney and was

satisfied with his attorney’s services. The district court did not abuse its

discretion by sentencing Sistrunk despite his expressed desire to withdraw his

guilty plea. See Powell, 354 F.3d at 370; see also Carr, 740 F.2d at 344 (“The

purpose [of allowing withdrawal of a guilty plea] is not to allow a defendant to

make a tactical decision to enter a plea, wait several weeks, and then obtain a

withdrawal if he believes that he made a bad choice in pleading guilty.”).

To the extent that Sistrunk complains of the district court’s failure to hold

an evidentiary hearing on a motion to withdraw his guilty plea, he has failed to

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No. 09-30813

allege sufficient facts that, if proved, would justify relief. See Powell, 354 F.3d

at 370; see also Bell, 966 F.2d at 916-17 (rejecting a claim that the district court

was required to warn the defendant that his unconditional guilty plea waived his

right to appeal the denial of his speedy trial motion). Furthermore, Sistrunk

specifically disclaims any Sixth Amendment challenge to his attorney’s

performance.

AFFIRMED.

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Case: 09-30813 Document: 00511266987 Page: 3 Date Filed: 10/19/2010