U.S. v. Henderson

• Decision Date: 22 December 1995
• Docket Number: No. 95-10176,95-10176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne HENDERSON, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 463

72 F.3d 463

UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne HENDERSON, Defendant-Appellant.

No. 95-10176

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1995.

Joseph Michael Revesz, United States Department of Justice, Dallas, TX, for plaintiff-appellee.

Larry Wayne Henderson, Rochester, MN, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DUHE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Larry Wayne Henderson appeals his conviction for possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g). Henderson's appointed counsel moves to withdraw, pursuant to Anders v. California. ¹ The Government moves to dismiss the appeal for want of jurisdiction. We deny the Government's motion, but we grant counsel's motion, and we dismiss the appeal.

The Armed Career Criminal Act makes it unlawful for any person who has been convicted of a crime punishable by imprisonment for more than one year to possess a firearm. ² Having previously been convicted four times of crimes punishable by imprisonment for more than one year, Henderson possessed and sold a handgun, in violation of the Armed Career Criminal Act. Henderson pleaded guilty to the handgun charge after the Government notified Henderson of its intention to seek an enhanced punishment. In the plea agreement, Henderson waived the right to appeal his sentence. ³ After the district court accepted his plea, Henderson moved to discharge his counsel and to withdraw his plea. After a hearing, the district court granted the motion to discharge counsel, appointed the Federal Public Defender's Office to represent Henderson, and denied his motion to withdraw the guilty plea. The district court sentenced Henderson to a prison term of fifteen years, the statutory minimum. ⁴ Henderson timely filed a notice of appeal. Henderson's appointed counsel filed an Anders brief, ⁵ and Henderson filed his own brief pro se. The Government moved to dismiss the appeal for want of jurisdiction on the ground that Henderson had waived his right to appeal.

Henderson argues that the district court erred when it denied his motion to withdraw the guilty plea. The motion, Henderson asserts, should have been granted because he was denied adequate assistance of counsel. We must first determine whether Henderson has waived the right to raise such a claim on direct appeal. The right to appeal a criminal conviction is a statutory right, not a constitutional right. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). A defendant may waive statutory rights, including the right to appeal, as part of a plea bargaining agreement. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). However, we have previously noted, without deciding the issue, that waivers of rights to appeal may not apply to ineffective assistance of counsel claims. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that waiver of postconviction relief in plea agreement may not apply to collateral attacks based on ineffective assistance of counsel). Without deciding the issue, the Ninth Circuit has expressed similar sentiments. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) ("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain.").

On facts similar to Henderson's case, the Fourth Circuit held that a defendant's waiver of appeal in a plea agreement does not preclude an appeal from the denial of a motion to withdraw the plea, where the motion to withdraw is based on a claim of ineffective assistance of counsel. United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993). We agree with the Fourth Circuit that dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the plea agreement generally, and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel. Thus, we hold that the waiver of appeal in Henderson's plea agreement does not preclude this appeal, and thus that we have jurisdiction to entertain Henderson's challenge to the district court's denial of his motion to withdraw the plea.

We must next determine whether Henderson's appeal presents an issue of arguable merit. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Bounds, 943 F.2d 541, 543 (5th Cir.1991). The district court may grant a motion to withdraw a guilty plea upon the defendant's showing of "any fair and just reason." FED.R.CRIM.P. 32(e). The burden of establishing a fair and just reason rests with the defendant. United States v. Badger, 925 F.2d 101, 104 (5th Cir.1991). When ruling on a motion to withdraw a guilty plea, district courts should consider (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. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). Henderson asserts only the inadequate assistance of his counsel as a fair and just reason for why the district court should have granted the motion.

Henderson first argues that adequate assistance of counsel was not available to him when he entered the plea agreement. He claims that his counsel instructed him to...