PER CURIAM:
Appellant Minor was sentenced pursuant to a guilty plea to 120 months in prison and a five-year term of supervised release for one count of conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base or crack cocaine. 21 U.S.C. § 846. He signed a factual basis for the plea agreement that admitted he delivered five kilograms of cocaine powder that co-defendants then converted into crack. Now on appeal, he challenges the court's alleged failure to rule on his pro se request to withdraw the guilty plea and seeks re-sentencing under the Fair Sentencing Act, Pub.L. No. 111-220, 124 Stat. 2372 (2010), based on Dorsey v. United States, ___ U.S. ___, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). We reject both contentions.
According to Minor, he entered his May 2011 guilty plea unwillingly, regretted having pled within a short time after testifying the plea was voluntary, and discussed these views with his court-appointed counsel Mr. Harville on numerous occasions. Nothing out of the ordinary appears in the documents supporting the plea agreement or in the testimony Minor gave that persuaded the magistrate judge to recommend acceptance of the plea, and there were no omissions in the plea colloquy. The court accepted the plea in June.
Minor's attempt to withdraw his plea appears in two letters written pro se to the district judge that also expressed unhappiness with his counsel. The matter culminated at a hearing on November 7, 2011, in which the court took up, first, Minor's request to have alternative counsel appointed, and second, whether to hear the motion to withdraw the guilty plea. The court fully advised Minor of the considerations surrounding its decision whether to
As an epilogue to these events, the court rescheduled Minor's sentencing not once but twice more. At one subsequent hearing, Minor was allowed to dismiss Harville, with the option either to retain another lawyer or represent himself. Minor, fully advised, proceeded to sentencing pro se. Minor never renewed the motion to withdraw his guilty plea.
Represented by adroit court-appointed counsel on appeal, Minor asserts that he had a right to attempt to withdraw his guilty plea and a plausible basis for doing so, and counsel's refusal to file the motion deprived him of counsel within the meaning of the Sixth Amendment. We see this claim much more narrowly.
Further, the court had every reason to believe that Minor's counsel had taken appropriate steps to determine there were no grounds to sustain the withdrawal of the plea agreement. "[I]t is well settled that there is no absolute right to withdraw a guilty plea before the imposition of sentence." United States v. Carr, 740 F.2d 339, 344 (5th Cir.1984). "The standard for determining whether or not a defendant may withdraw his guilty plea prior to sentencing is whether `for any reason the granting of the privilege seems fair and just.' Federal courts have uniformly applied
Because Minor was represented throughout the pertinent proceedings, he did not suffer from an absence of counsel. United States v. Cronic, 466 U.S. 648, 658-61, 656 n. 19, 104 S.Ct. 2039, 2046-48, 2045 n. 19, 80 L.Ed.2d 657 (1984). The only potentially meritorious issue arising from this course of events is whether counsel's refusal to file the motion was in fact constitutionally deficient and prejudiced Minor. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We need not finally resolve that issue in order to conclude that the judge's decision, as far as it went, was soundly based. Minor will have to file a Section 2255 petition in order to explore the ineffectiveness claim properly.
This contention is reviewed for plain error, as the defendant failed to object to his sentence based on the changes wrought in crack cocaine sentences under the Fair Sentencing Act, 124 Stat. 2372. However, there is no error, because Minor's factual stipulation attending his guilty plea acknowledged his participation in the conspiracy by distribution of cocaine powder alone (with its conversion to crack by other defendants). Further, Minor's sentence was actually calculated using only powder cocaine ranges rather than those applicable to crack. The FSA does not apply to sentences involving powder cocaine.
For the foregoing reasons, the judgment and sentence are
See also United States v. Robles, 445 Fed. Appx. 771, 778 (5th Cir.2011) (citing the foregoing cases and stating that this court assumes "that the hearing on a motion to withdraw a guilty plea [i]s a critical stage of the proceedings requiring the right to counsel"); United States v. Presley, 415 Fed.Appx. 563, 568 (5th Cir.2011) (same). In United States v. Harris, 304 Fed.Appx. 270 (5th Cir.2008) (unpublished), we treated a nearly identical claim as raising a Sixth Amendment ineffectiveness claim, which this court rarely reviews on direct appeal. We cite these non-precedential cases from the Fifth Circuit to show only the consistency of our decisions. The instant case is published and precedential to confirm our approach.