USA v. Bornes

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	NO: 23-224
TEVIN BORNES 	SECTION “H”
ORDER AND REASONS
Before the Court is Defendant Tevin Bornes’s Motion for Withdrawal of
Guilty 	Plea 	(Doc. 	96). 	For 	the 	following 	reasons, 	Defendant’s 	Motion 	is
DENIED.
BACKGROUND
On 	October 	5, 	2023, 	a 	federal 	grand 	jury 	returned 	an 	indictment
charging Defendant with the following four counts: (1) possession with the
intent to distribute controlled substances in violation of 18 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 841(b)(1)(C); (2) possession of firearms in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 942(c)(1)(A)(i); (3) possession
of a machinegun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2); and (4) felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8).
The Court appointed a Federal Public Defender, Maura Doherty, to represent
Defendant.
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Upon the request of counsel, the Court set a rearraignment hearing.1
Before rearraignment, Defendant moved to substitute his counsel, and the
Court appointed Michael Kennedy from Center for Justice & Accountability
(“CJA”) panel. Defendant also filed two motions seeking to dismiss Counts Two
and Four of his Indictment, but the Court denied both.2
On July 2, 2025, Defendant appeared before the Court and entered a plea
of guilty as to all four counts. The Court set Defendant’s sentencing for October
15, 2025. On October 10, 2025, Defendant filed the instant Motion to withdraw
his plea. The Government opposes.3 The Court held an evidentiary hearing on
the Motion on March 24, 2026, and Defendant declined to take the stand,
invoking the Fifth Amendment.
LAW AND ANALYSIS
Defendant argues that his guilty plea should be withdrawn because he
is 	factually 	innocent 	and 	lacked 	a 	full 	understanding 	of 	the 	potential
consequences of his plea. Defendant further argues that the withdrawal of his
guilty plea would not prejudice the government, inconvenience the Court, or
waste judicial resources.
Federal 	Rule 	of 	Criminal 	Procedure 	11(d)(2)(B) 	provides 	that 	“[a]
defendant may withdraw a plea of guilty or nolo contendere: . . . after the court
accepts the plea, but before it imposes sentence if: . . . the defendant can show
a 	fair 	and 	just 	reason 	for 	requesting 	the 	withdrawal.” 	The 	burden 	of
1 Defendant’s rearraignment hearing was originally set for October 2, 2024. Defendant moved
to continue his rearraignment five times. The Court granted each.
2 Doc. 61.
3 Doc. 99.
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establishing such a “fair and just reason” remains at all times with the
defendant.4 There is no absolute right to withdraw a guilty plea.5
In United States v. Carr, the United States Court of Appeals for the Fifth
Circuit stated that:
Seven factors are to be considered in deciding 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 his plea was knowing and voluntary; and
(7) whether withdrawal would waste judicial resources.6
In considering these factors, this Court finds that they weigh against
granting Defendant’s Motion for Withdrawal of Guilty Plea. First, while
Defendant’s Motion asserts that he is innocent and that there is a lack of
evidence sufficient to support the charges against him, Defendant has not
provided any evidence or testimony supporting that assertion. On the contrary,
at his rearraignment hearing, Defendant repeatedly testified that he was
guilty on all counts and admitted to the facts in the factual basis. “Under the
Carr framework, the defendant must not only assert his innocence, but also
provide a substantial supporting record for this assertion in order to support
his motion to withdraw.”7 Defendant’s prior rearraignment testimony casts
serious doubt on his assertion of innocence, and he offers no evidence of his
4 United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
5 Id.
6 United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992) (citing United States v. Carr,
740 F.2d 339, 343–44 (5th Cir. 1984)).
7 United States v. Strother, 977 F.3d 438, 445 (5th Cir. 2020) (quotation marks omitted).
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innocence 	here. 	Because 	Defendant 	has 	not 	provided 	the 	Court 	with 	a
substantial supporting record of his innocence, the first factor weighs against
allowing Defendant to withdraw his guilty plea.
As to the second, fourth, and seventh factors, the Court finds that
granting 	Defendant’s 	motion 	would 	not 	substantially 	prejudice 	the
Government, 	inconvenience 	the 	Court, 	or 	waste 	judicial 	resources.
Accordingly, these factors are neutral.
As to the third factor, Defendant filed this Motion more than three
months after his guilty plea was entered, a month after he filed objections to
the U.S. Probation Office’s Draft Presentence Report, and just five days before
he was scheduled to be sentenced. In Carr, the Fifth Circuit ruled that a motion
was “not promptly filed” when the defendant waited just twenty-two days after
his plea to do so.8 As the court explained, “the rationale for allowing a
defendant to withdraw a guilty plea is to permit him to undo a plea that was
unknowingly made at the time it was entered. The purpose is not to allow a
defendant to make a tactical decision to enter a plea, wait several weeks, and
then obtain a withdrawal if he believes that he made a bad choice in pleading
guilty.”9 Without assuming what, if any, tactical decision Defendant was
making during the time between his plea and the filing of the instant Motion,
the Court finds that this factor weighs against allowing Defendant to withdraw
his plea.
As to the fifth factor, the Fifth Circuit has advised that the Court should
consider “whether counsel was available to the defendant throughout the
proceedings.”10 Defendant has been represented by counsel since his initial
8 740 F.2d at 345.
9 Id.
10 United States v. Tran, No. 21-30608, 2022 WL 17832289, at *5 (5th Cir. Dec. 21, 2022)
(quoting United States v. Lord, 915 F. 3d 1009 (5th Cir. 2019)).
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appearance before the Magistrate Judge, and his current counsel, Michael
Kennedy, was enrolled for approximately nine months at the time Defendant
entered his guilty 	plea. Further, Defendant’s 	counsel 	represents 	that he
“closely 	advise[d] 	[the 	Defendant] 	regarding 	the 	charges 	and 	possibl[e]
defenses.”11 Defendant testified at his rearraignment hearing that he had
conferred with his counsel and was satisfied with his representation. Here, he
offers no evidence to the contrary. Accordingly, this factor weighs against
allowing Defendant to withdraw his plea.
As to the sixth factor, Defendant’s Motion asserts that he lacked full
understanding of the potential consequences of a guilty plea. Defendant has
provided no evidence on this point. Further, in the plea colloquy during
Defendant’s rearraignment, the Court thoroughly explored whether the plea
was being entered knowingly and voluntarily and found that it was. During
this colloquy, Defendant affirmed his understanding of the charges against
him, the factual basis, and the potential consequences of his guilty plea.
Accordingly, this factor also weighs against granting Defendant’s motion.
Because the Carr factors weigh against allowing Defendant to withdraw his
guilty plea, his Motion must be denied.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Withdrawal of Guilty
Plea (Doc. 96) is DENIED.
IT IS FURTHER ORDERED that a Sentencing Hearing for Defendant
Tevin Bornes shall be SET for the 13th day of May 2026 at 9:30 a.m.
11 Doc. 96-1 at 3.
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New Orleans, Louisiana this 1st day of April, 2026.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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