United States v. Bates

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 9, 2002
• Docket: 02-50198
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50198 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

AARON BATES,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (SA-01-CR-339-1)

December 5, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Aaron Bates appeals his guilty-plea conviction and 71-month

sentence for assault with a deadly weapon. He contends his trial

counsel was ineffective. He also asserts the district court erred:

during the FED. R. CRIM. P. 11 plea colloquy; in denying a motion to

withdraw the guilty plea and in calculating his sentence under the

Guidelines.

The record is inadequate to resolve Bates’ ineffective-

assistance-of-counsel claim; we, therefore, decline to review it on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. direct appeal. E.g., United States v. Higdon, 832 F.2d 312, 314

(5th Cir. 1987), cert. denied 484 U.S. 1075 (1988).

Bates made no objection to errors during the FED. R. CRIM. P. 11

colloquy. Based on the record as a whole, he has not demonstrated

any of the asserted errors affected his substantial rights. See

United States v. Vonn, 535 U.S. 55, 122 S. Ct. 1043, 1046 (2002).

Further, the district court did not abuse its discretion in denying

Bates’ motion to withdraw his guilty plea. Bates filed the motion

because the Government sought to increase Bates’ offense level for

obstruction of justice and requested an upward departure, but the

district court denied both requests. See United States v. Grant,

117 F.3d 788, 789 (5th Cir. 1997).

With respect to the sentencing error, raised for the first

time on appeal, Bates does not request resentencing; rather, he

raises the issue to support his contention that his conviction

should be vacated and his plea withdrawn. Bates makes no showing

of plain error. See United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc), cert. denied 513 U.S. 1196

(1995).

AFFIRMED