UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 94-30661 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

KEVIN MYLES aka Kevin M. Myles and WALTER TURNER

Defendants-Appellants.

________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana

(CR-94-97-F) ________________________________________________

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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 95-30101 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

DANA HICKS,

Defendant-Appellant. ________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana

(CR-94-97) ________________________________________________ December 22, 1995

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:1

Kevin Myles and Walter Turner were convicted for conspiracy to

distribute cocaine base and possession of cocaine base with intent

to distribute. In addition, Myles was convicted for use of a

weapon during a drug trafficking offense. Both appeal their

convictions. Dana Hicks was indicted with Walter Turner and Kevin

Myles; he appeals the denial of his motion to withdraw his guilty

plea and his sentence. We AFFIRM.

I.

Agents of the Bureau of Alcohol, Tobacco and Firearms and the

Drug Enforcement Administration, working with the New Orleans

Police Department, obtained a federal search warrant for 3107

Marais Street in New Orleans. When the warrant was executed,

Turner and Hicks were present; Turner told agents that he owned the

house, that he occupied the second bedroom, and that Myles occupied

another bedroom. Agents seized cocaine, numerous firearms,

ammunition, United States currency, and narcotics-related items.

Turner was arrested at the time of the search.

1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published.

- 2 - Myles was arrested several days later. He gave a recorded

confession to DEA agent Jim Langnes and ATF agent Charles Hustmyre

after they gave him Miranda warnings.

II.

A.

Myles asserts that the district court did not comply with

, which governs the procedure to be used when a

defendant challenges the voluntariness of a confession. The

Government introduced his recorded confession to Agent Hustmyre

during its direct examination of him. Myles objected, stating that

"the basis for the objection is that prior statements, prior

testimony given by Agent Langnes, indicated that [Myles] did not

give that statement free and voluntary and that he was, in a sense,

given a promise of leniency for making a statement at the time".

The district court overruled the objection, stating that it

was not supported by the record. The Government then questioned

Agent Hustmyre about whether threats were made to Myles, or any

promises made to him regarding his cooperation. Agent Hustmyre

responded that Myles was told that his cooperation would be brought

to the attention of the United States Attorney's office. The court

stated that, "in view of [Myles'] objection", Myles would be given

the opportunity to cross-examine Agent Hustmyre for any

inconsistency between his and Agent Langnes' testimony.

Myles elicited the following on cross-examination. Myles was

read his constitutional rights before any statement was made; Myles

- 3 - was told that his cooperation would be brought to the attention of

the United States Attorney, but no promise was made that the court

would be made aware of the cooperation; and Agent Langnes was

present when Myles was interviewed, but he made no promises to

Myles.

Myles reiterated his objection to the admission of the

confession, at which time the court conducted a bench conference.

At the conference, the court asked Myles' lawyer why he had not

filed a motion to suppress the confession. Counsel responded that

his client had only recently informed him of the statement. Myles

asserted that Agent Langnes had testified that he told Myles that

if he were to cooperate, it would be brought to the court's

attention,2 and that he believed that he would receive favorable

treatment by the court. The court again overruled the objection,

and the recorded confession was played for the jury.

Section 3501(a) provides that:

... [A confession] shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made ... [he] shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

(a). Myles contends that the court determined the

issue of voluntariness partly in front of the jury, failed to make

2 Agent Langnes testified that when Myles was arrested he was advised of his Miranda rights and told that "if he were to cooperate with the [G]overnment his cooperation would be made known to the judge before he was sentenced".

- 4 - specific findings on the voluntariness of the confession, and,

after finding that the confession was voluntary, failed to give the

required jury instruction. The Government counters that "no

genuine issue of voluntariness existed", inasmuch as trial

testimony established that Myles was advised of his rights before

confessing and had agreed to be interviewed.

This court held in United States v. Iwegbu,

(5th Cir. 1993), that § 3501 "is written in mandatory language, and

therefore once an issue arises as to the voluntariness of a

confession, the district court should conduct a voluntariness

hearing and give the instruction required by the statute".

Iwegbu's counsel had not moved to suppress, did not request a

hearing or instruction, and did not object to testimony regarding

the controverted confession. Id. at 274. Our court explained that

"even when no request is made for the hearing and instruction, the

district court should comply with the statute sua sponte when the

evidence clearly raises a question of voluntariness". Id. Unlike

Iwegbu, Myles objected to the admission of the confession on

voluntariness grounds, thereby clearly raising the issue.

Iwegbu held that, when voluntariness was placed in issue in

district court, this court asks whether that court's failure to

conduct the hearing and give the instruction sua sponte amounts to

reversible error and that, if no requests or objections were made

in district court regarding the confession, then the errors

asserted on appeal must amount to plain error. Iwegbu, 6 F.3d at

- 5 - 274. No request was made by Myles for a hearing or instruction

pursuant to § 3501.3

Under Fed. R. Crim. P. 52(b), this court may correct forfeited

errors only when the appellant shows the following factors: (1)

there is an error, (2) that is clear or obvious, and (3) that

affects his substantial rights. United States v. Calverley,

(5th Cir. 1994)(en banc)(citing Olano, 113 S. Ct.

at 1776-79), cert. denied,

(1995).

Plain error is one that is "clear or obvious, and, at a

minimum, contemplates an error which was clear under current law at

the time of trial". Calverley,

(internal

quotation and citation omitted). "[I]n most cases, the affecting

of substantial rights requires that the error be prejudicial; it

must affect the outcome of the proceeding."

.

Even when the appellant carries his burden, Rule 52(b) is

permissive, not mandatory. If the forfeited error is plain and

affects substantial rights, this court has authority to correct the

error, but is not required to do so; and this discretion is narrow.

Rodriguez, 15 F.3d at 416-17. We exercise it only when errors

"seriously affect the fairness, integrity, or public reputation of

judicial proceedings". Calverly, 37 F.2d at 164.

The district court erred when it did not follow the mandate of

§ 3501 to hold a hearing outside the presence of the jury and when

it did not instruct the jury on the weight to be given the

3 Myles concedes that no jury instruction was requested, but asserts that the failure constituted plain error.

- 6 - confession. Myles, however, does not meet his burden of showing

that the error "had an unfair prejudicial impact on the jury's

deliberations". Iwegbu,

(citation and internal

quotation marks omitted).

Myles' only claim that the confession was not voluntary is

that he made the confession "as a direct result of the agents

promising to bring his cooperation to the attention of the United

States Attorney's Office". This reason does not implicate any of

the factors § 3501(b) discusses as circumstances the district court

should consider when determining whether a confession was

voluntary.4 Nor does Myles show that such a belief rendered the

confession involuntary. Thus, even if the district court had

conducted a voluntariness hearing, it would have had to conclude

that the confession was free and voluntary. Consequently, the

hearing would not have affected the evidence presented to the jury.

See Iwegbu,

. Because Myles has not demonstrated any

prejudice that resulted from the district court's failure to

4 Section 3501(b) provides that when determining the voluntariness of a confession, the trial judge should consider "all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether ... such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether ... such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether ... such defendant was without the assistance of counsel when questioned and when giving such a confession".

- 7 - conduct a voluntariness hearing, the error cannot be considered one

that affects a substantial right.

Although the court did not give a specific instruction on the

weight the jury was to give to the confession, the court did give

a general instruction on the credibility of witnesses. Such a

general instruction limits the possible prejudice that might result

from the failure to give a voluntariness instruction. Iwegbu,

-76 & n.4.5 Moreover, in closing argument, Myles'

counsel referenced the confession, but neglected to make use of the

opportunity to argue that it was involuntary, further undermining

Myles' claim on appeal that the failure to instruct the jury on

voluntariness constituted the type of serious error required to

satisfy our plain error standard. Considering both the instruction

given and his attorney's choice not to argue involuntariness to the

jury, we cannot find that the failure to explicitly instruct on

voluntariness affected any substantial right of the defendant.

In sum, there was no plain error.

B.

Turner maintains that the evidence was insufficient to support

his conviction for conspiring to possess with intent to distribute

cocaine base and for possession with intent to distribute. He

acknowledges that he did not move for judgment of acquittal at the

5 The general instruction on the credibility of witnesses found by the Iwegbu court to limit possible prejudice resulting from the district court's failure to give a voluntariness instruction contains the same language as the district court's general charge on the credibility of witnesses in the instant case.

- 8 - close of the Government's case, and that no such motions were made

at the close of all the evidence.

Absent a motion for acquittal, we review the sufficiency of

the evidence only for whether affirmance would result in manifest

injustice. United States v. Singer,

(5th Cir.

1992). Under this standard, Turner's conviction may be reversed

only if the record is devoid of evidence pointing to guilt, or if

the evidence on a key element of the offense was so tenuous that a

conviction would be shocking. See United States v. Sparks,

(5th Cir. 1993) (quoting United States v. Galvan,

(5th Cir. 1991), cert. denied, __ U.S. __,

(1994).

To prove the conspiracy charge, the Government was required to

establish beyond a reasonable doubt (1) that a conspiracy existed,

i.e., that Turner and at least one other person agreed to violate

the narcotics laws; (2) that Turner knew of the conspiracy; and (3)

that he voluntarily participated in it. E.g., United States v.

Cardenas,

(5th Cir. 1993), cert. denied,

(1994). And, to establish a violation of

(a)(1) for possession with intent to distribute cocaine, the

Government must show knowing possession with intent to distribute.

United States v. Munoz,

(5th Cir.), cert. denied,

(1992).

As the Government contends, Turner's rendition of the facts

shows that the record is not devoid of evidence of his guilt.

Turner states that Government witnesses testified that a search of

- 9 - Myles' bedroom in Turner's house yielded "fifty grams of cocaine

base found in three different locations, an automatic pistol, an

assault rifle, an AK 47, over $5000 in United States currency in a

box, $700 in United States currency in a jacket, hundreds of rounds

of ammunition, a digital scale, four pagers, and a cellular phone".

A search of his bedroom revealed a small amount of cocaine base in

the pocket of a jacket, $610 which drew a reaction from a drug-

sniffing dog, and two boxes of ammunition. From this evidence

alone, a jury could have inferred that Turner and Myles conspired

to possess and distribute cocaine base, and that Turner possessed

it.

C.

Dana Hicks pleaded guilty to possession with the intent to

distribute cocaine base. The presentence report (PSR) increased

his base offense level for relevant conduct. At his sentencing

hearing, Hicks moved to withdraw his guilty plea, on the basis that

he had not thought that he would be sentenced for relevant conduct.

The district court denied the motion, and sentenced him to 236

months of imprisonment and a five-year term of supervised release.

1.

Hicks asserts that the district court erred when it denied his

motion to withdraw his guilty plea. He testified at the sentencing

hearing that he wished to withdraw his plea because the PSR

included relevant conduct, i.e. conspiracy to possess cocaine, when

calculating the recommended sentence. Hicks' counsel told the

court that, prior to Hicks' plea, counsel advised Hicks that

- 10 - relevant conduct would be considered by the court in sentencing;

Hicks acknowledged this on cross-examination.

This court reviews the denial of a motion to withdraw a guilty

plea only for abuse of discretion. United States v. Bounds,

(5th Cir. 1991), cert. denied, __ U.S. __,

(1993). In United States v. Carr,

(5th

Cir. 1984), cert. denied,

(1985), our court

enumerated seven factors for district courts to consider when

ruling on such a motion: (1) whether the defendant has asserted

his innocence; (2) whether withdrawal would prejudice the

Government; (3) whether the defendant delayed in filing the motion,

and if so, the reason for the delay; (4) whether withdrawal would

substantially 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.

Hicks raises two of the Carr factors on appeal. He urges that

his guilty plea was not knowing and voluntary because he did not

think that the court would consider relevant conduct when

sentencing him. But, his above referenced testimony contradicts

this. Moreover, receiving a sentence different from that hoped for

is not a proper basis for the withdrawal of a guilty plea. United

States v. Rodriguez,

(5th Cir. 1995).

Hicks contends that the Government failed to prove when he was

informed of the relevant conduct, and, therefore, the district

court was unable to evaluate properly whether his motion was

- 11 - unnecessarily or intentionally delayed. The Government, however,

does not bear the burden of proof on this issue. See United States

v. Badger,

(5th Cir. 1991). Additionally, the

PSR, dated September 9, 1994, referenced relevant conduct, but

Hicks made no objection to the reference. Two revisions to the PSR

followed on October 24, 1994, and January 19, 1995, also

referencing relevant conduct.6 Again, Hicks made no objections to

the inclusion of relevant conduct. His first objection to the

inclusion of relevant conduct was just before sentencing on January

25, 1995; and Hicks offered no excuse for the delay.

Turning to the remaining Carr factors, Hicks does not assert

his innocence. The Government would undoubtedly be prejudiced by

bringing the case to trial, inasmuch as the confidential informant

in the case has since been killed. As noted, counsel informed the

court, and Hicks testified, that counsel had apprised Hicks of the

use of relevant conduct in reaching a sentence. Moreover, Hicks

testified that he was satisfied with counsel's representation.

Last, in that the case had already proceeded to the sentencing

hearing when Hicks brought his motion, a trial would inconvenience

the court and waste judicial resources. In sum, the district court

did not abuse its discretion when it denied Hicks' motion to

withdraw his guilty plea.

2.

6 The revisions to the PSR are not part of the record, but were discussed by the district court at the sentencing hearing.

- 12 - Hicks contests the court's findings regarding the amount of

drugs used to calculate his sentence. The PSR, prepared September

9, 1994, applied U.S.S.G. § 1B1.3(a)(1)(A), which governs relevant

conduct, to determine the total amount of drugs used to determine

the base offense level.

After hearing testimony relative to Hicks' motion to withdraw

and denying it, the court questioned whether an objection regarding

the amount of drugs had been properly made, because Hicks' counsel

had not objected to a revised PSR. When asked whether he wished to

present any argument, Hicks' counsel stated that he did not view

the revised PSR as different from the first PSR. Counsel made no

argument regarding the amount of drugs determination.

The district court explained that it denied the motion to

withdraw because Hicks waived his right to object to the amount of

drugs used, by failing to object to the third revised PSR. Even

though the court found the objection was waived, the court also

held that Hicks' objection was meritless.

The court also read from a post-arrest statement given by

Myles. In that statement, Myles told agents for the ATF and the DEA

that Hicks had been supplying him with one to two ounces of crack

cocaine per week for six months prior to Myles' arrest.

On appeal, Hicks contends that when the court addressed the

merits of the number of drug transactions he had with Myles, it

acknowledged that the issue was disputed. He asserts that the

court was then bound to conduct an evidentiary hearing to determine

the reliability of the evidence supporting the findings. According

- 13 - to Hicks, Myles was not reliable, and the court should have called

on the probation officer and the prosecutor to produce any evidence

to corroborate his statement.

The district court's findings of fact for sentencing must be

accepted by this court unless they are clearly erroneous. E.g.,

United States v. Soliman,

(5th Cir. 1992). A

factual finding is not clearly erroneous if it is plausible in

light of the entire record. E.g., United States v. Sanders,

(5th Cir. 1991). And, the sentencing court may

consider any evidence relevant to sentencing which has sufficient

indicia of reliability to support its probable accuracy. See §

6A1.3(a); United States v. Sherbak,

(5th Cir.

1992). "The defendant bears the burden of demonstrating that

information the district court relied on in sentencing is

materially untrue." United States v. Vela,

(5th

Cir.), cert. denied,

(1991) (internal quotations and

citation omitted). The court must resolve specifically disputed

factual issues if it intends to use the facts as a basis for its

sentence. Fed. R. Crim. P. 32(c)(3)(D).

The record does not support Hicks' claim that the relevant

conduct issue was specifically disputed. Moreover, Hicks has not

demonstrated that the information the district court relied on was

materially untrue, inasmuch as he merely criticizes Myles statement

and presents no evidence to contradict it. Accordingly, he has

failed to establish clear error.

III.

- 14 - For the reasons discussed above, the judgments are

AFFIRMED.

- 15 -