United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
Braxton Dontrel Burns wants to withdraw his guilty plea. For
the following reasons, his motion  is
August 19, 2019, a grand jury returned a superseding
indictment charging Burns with being a felon in possession of
a firearm. As discussed more fully below, Burns entered a
knowing and voluntary guilty plea on September 13, 2019.
After receiving the Presentence Investigative Report (PSR),
Burns announced his desire to withdraw his plea and proceed
Rule of Criminal Procedure 11(d)(2)(B) allows a defendant to
withdraw a guilty plea if he or she can “show a fair
and just reason for requesting the withdrawal.” Whether
such a reason exists is decided under the following
non-exclusive Carr factors:
(1) whether or not the defendant has asserted his innocence;
(2) whether or not the government would suffer prejudice if
the withdrawal motion were granted; (3) whether or not the
defendant has delayed in filing his withdrawal motion; (4)
whether or not the withdrawal would substantially
inconvenience the court; (5) whether or not close assistance
of counsel was available; (6) whether or not the original
plea was knowing and voluntary; and (7) whether or not 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
United States v. Carr, 740 F.2d 339, 343-44 (5th
Cir. 1984). “The Carr factors are considered
for the totality of the circumstances, and the district court
is not required to make a finding as to each individual
factor.” United States v. McKnight, 570 F.3d
641, 646 (5th Cir. 2009).
case, Burns generally says that despite his sworn testimony
admitting guilt, he is actually innocent. He also explains
that he entered his plea with the belief that the guideline
range would be much lower than the one contained in the PSR.
These reasons are not sufficient under Carr.
are two problems with Burns's recently professed
innocence: (1) he offers no proof of innocence and (2) his
argument contradicts his sworn statements in open court. To
begin, “a defendant's assertion of actual innocence
alone, without supporting evidence, is insufficient to
warrant allowing withdrawal under Carr.”
United States v. Harrison, 777 F.3d 227, 235 (5th
Cir. 2015). Burns offers no evidence to support his belated
profession of innocence, and his claim is undermined by the
fact that he made it only after discovering that the PSR
recommended a higher than expected guideline range.
Burns gave voluntary, informed, and under-oath admissions of
guilt during his plea hearing. Burns agreed that he fully
understood the charges against him. Plea Tr. [37-1] at 7. He
then stated that he was knowingly and voluntarily agreeing to
plead guilty because he was in fact guilty. Id. at
14. He also said he fully understood the essential elements
of the offense. Id. at 20-21. And finally, Burns
acknowledged that he understood the Government's
proffered facts and agreed with them. Id. at 24. All
this occurred before he entered his guilty plea. Id.
‘[s]olemn declarations in open court carry a strong
presumption of verity,' which is untouched by
[Burns's] unsworn statements” professing his
innocence. United States v. Martinez, 672 Fed.Appx.
475, 476 (5th Cir. 2017) (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)); see also United
States v. Ehrman, 777 Fed.Appx. 778, 779 (5th Cir. 2019)
(“Ehrman's proffered evidence, at best, supports a
theory of defense but does not demonstrate that he is
actually innocent of the charged fraud or overcome his solemn
declarations, made under oath, that ...