United States v. McDonald

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 4, 2008
No. 07-40726
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHARLTON RAY MCDONALD
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:06-CR-286-ALL
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Charlton Ray McDonald pleaded guilty to the possession of child
pornography and was sentenced to 120 months of imprisonment and three years
of supervised release.
He argues on appeal that the district court erred in denying his motion to
withdraw his guilty plea. He contends that he was entitled to have his plea
withdrawn because his counsel was ineffective for failing to investigate or advise
him concerning the defense of necessity before advising him to plead guilty.
*
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should not be published and is not precedent except under the limited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.
No. 07-40726
When determining whether to allow a defendant to withdraw his guilty
plea, the district court should consider whether: (1) the defendant has asserted
his innocence, (2) withdrawal would prejudice the Government, (3) the defendant
has delayed in filing his withdrawal motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was available, (6) the
original 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).
McDonald has not shown that the district court abused its discretion in
determining that he was not entitled under the Carr factors to have his guilty
plea withdrawn. See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003);
Carr, 740 F.2d at 343-44.
AFFIRMED.
2