United States v. Wangwamba ( 2021 )

Case: 19-11362 Document: 00515708016 Page: 1 Date Filed: 01/14/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11362
January 14, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Innocent Wangwamba,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-307-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Innocent Wangwamba pleaded guilty, per a plea agreement with an
appeal waiver, of theft of government money. He was sentenced to prison
followed by supervised release.
Wangwamba’s appointed counsel filed a brief in this appeal, then
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
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No. 19-11362
moved to withdraw his representation and his brief and requested to substi-
tute Wangwamba’s pro se brief. Because counsel has not shown that there is
a conflict of interest or that the interests of justice require relief of counsel,
we deny the motion. See Fifth Circuit Plan Under the Crim-
inal Justice Act § 5(B); see also Myers v. Johnson, 76 F.3d 1330, 1335
(5th Cir. 1996) (noting that a defendant who accepts the assistance of counsel
on appeal has no constitutional right to hybrid representation and cannot
expect to be allowed to file a supplemental pro se brief).
Wangwamba challenges the denial of his motion to withdraw his guilty
plea. We review for abuse of discretion. United States v. McKnight, 570 F.3d
641, 645 (5th Cir. 2009). In evaluating the denial of a motion to withdraw a
guilty plea, we consider the totality of the circumstances, including the seven
factors in United States v. Carr, 740 F.2d 339, 343−44 (5th Cir. 1984).
The record supports the denial based on the district court’s consid-
eration of the Carr factors. Wangwamba’s bald assertion of innocence is in-
sufficient to show that the court erred in denying the motion to withdraw the
guilty plea. See United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996). Also
weighing against Wangwamba is the ten-month delay before he filed his orig-
inal motion to withdraw his guilty plea, his later withdrawal of that motion,
and an additional six-month delay in filing a second motion to withdraw his
guilty plea (which he also sought to withdraw). See, e.g., United States v.
Thomas, 13 F.3d 151, 153 (5th Cir. 1994) (finding a six-week delay “signifi-
cant”).
Wangwamba also received close assistance of counsel, and his guilty
plea and plea waiver were knowing and voluntary. See McKnight, 570 F.3d
at 646−48; Carr, 740 F.2d at 345. And finally, the district court was in the
“best position to know the effect that the withdrawal [would have] on its
resources.” Carr, 740 F.2d at 345. Accordingly, Wangwamba has failed to
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Case: 19-11362 Document: 00515708016 Page: 3 Date Filed: 01/14/2021
No. 19-11362
demonstrate that the district court abused its discretion in denying the
motion to withdraw his guilty plea.
Wangwamba challenges a special condition of supervised release that
was included in the written judgment but not pronounced at sentencing. He
and the government agree that the appeal waiver applies to this issue, see
United States v. Higgins, 739 F.3d 733, 737−39 (5th Cir. 2014), but he raises
the claim to preserve it for future appellate review. We agree that the waiver
applies and that the claim is foreclosed. Id.The judgment is AFFIRMED, and the motion to withdraw is
DENIED.
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