United States v. Jerry Curry , 668 F. App'x 588 ( 2016 )

Case: 15-11062 Document: 00513664632 Page: 1 Date Filed: 09/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11062
FILED
September 6, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JERRY CURRY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-151-8
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Jerry Leland Curry, Jr., challenges the district court’s denial of his
motion to withdraw his guilty plea. We accord broad discretion to the district
court’s decision. United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). “[A]
defendant may withdraw a guilty plea after the court has accepted it, but prior
to sentencing, only if he ‘can show a fair and just reason for requesting the
withdrawal.’” United States v. Harrison, 777 F.3d 227, 234 (5th Cir. 2015)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-11062 Document: 00513664632 Page: 2 Date Filed: 09/06/2016
No. 15-11062
(quoting FED. R. CRIM. P. 11(d)(2)(B)). Curry disagrees with the district court’s
assessment of the Carr factors and points to specific facts in support of his own
assessment of those factors. We find no abuse of discretion, as Curry has not
shown that the district court denied the motion based on an error of law or a
clearly erroneous factual finding. See Harrison, 777 F.3d at 234; Carr, 740
F.2d at 344.
Curry also challenges his 300-month within-guidelines sentence as
procedurally and substantively unreasonable. Sentencing challenges raised
for the first time on appeal are reviewed for plain error. United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007); see Puckett v. United States, 556 U.S.
129, 135 (2009). A sentencing court commits procedural error when, inter alia,
it improperly calculates the advisory guidelines range or fails to consider the
18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007). Curry
has not demonstrated any procedural error or, in light of the district court
statement that it would impose a 300-month sentence even if it erred in its
guidelines calculation, that the alleged error affected his substantial rights.
See United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000); United States v.
Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009). Nor has Curry
rebutted the presumption that his sentence is substantively reasonable. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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