(caption unavailable)

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________________
No. 92-4957
_________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANK A. KECK,
Defendant-Appellant.
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_________________________________________
No. 92-4958
_________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HARVEY BARNES,
Defendant-Appellant.
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_______________________________________
No. 92-4959
_______________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
VIRGIL BARNES,
Defendant-Appellant.

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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should not be published.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
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
(CR-91-30043-03)
(CR-91-30043-02)
(CR-91-30043-07)
_________________________________________________________________
(August 12, 1993)
Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
In these consolidated appeals from guilty pleas to drug
trafficking offenses, Harvey and Virgil Barnes and Franklin Keck
contest their sentences, and Harvey Barnes also challenges not
being allowed to withdraw his plea. Finding no reversible error,
we AFFIRM.
I.
In early November 1991, several law enforcement agencies
conducted an undercover operation in Monroe, Louisiana, as part of
an ongoing investigation of a drug trafficking organization based
in Houston, Texas. It was suspected that this organization was
directed by appellant Harvey Barnes of Houston, and that he
imported illegal drugs and then transported them across state lines
into Louisiana.
A confidential informant (CI) arranged to purchase over 100
pounds of marijuana from Harvey Barnes for $110,000. It was to be

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2 See United States v. Caldwell, 985 F.2d 763 (5th Cir. 1993).
3
delivered to a Monroe hotel room on November 6 by Shirley Carter,
and appellant Franklin Keck was to collect the payment and return
it to Barnes. Carter travelled from Houston to Monroe on November
6 with approximately 115 pounds of marijuana. The additional 15
pounds were to be sold later that day in Monroe to Algean Caldwell
in a separate transaction.
After Carter delivered the marijuana to the CI as planned, the
CI showed Carter the payment money; but Carter did not take it,
waiting instead for Keck. When Keck arrived, he took the money;
and when he and Carter left, they were arrested by police officers
who had been monitoring the transaction. After Carter agreed to
cooperate with the officers, she called Harvey Barnes to report the
successful completion of the first transaction, and he gave her
instructions for the delivery to Caldwell. She was placed under
surveillance, and made the delivery as instructed. Caldwell,
accompanied by Dorothy Norwood, paid Carter only a service fee, as
he had made private arrangements with Harvey Barnes regarding
payment for the marijuana. Caldwell and Norwood were arrested
shortly thereafter.2
The next day, the undercover operation shifted to Houston,
where a controlled payment to Harvey Barnes was planned. Harvey
Barnes's source for the marijuana, later identified as Jose Cantu,
was in Houston awaiting payment; and Barnes contacted the CI,
trying to locate Keck and the $110,000. The CI called Barnes, and
told him that partial payment was on the way. Barnes's house was

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3 Virgil Barnes had been taken into custody in July 1991, after
helping deliver one kilogram of cocaine from Shreveport to Monroe.
He was not arrested then, because he agreed to cooperate with law
enforcement authorities. He was released and paid $750 to maintain
the appearance that the transaction had gone as planned.
4 Harvey Barnes and Keck pled not guilty to the original
indictment in December 1991. Virgil Barnes, named only in the
superseding indictment, entered his not guilty plea in March 1992,
along with Keck. Harvey Barnes pled not guilty to the superseding
indictment in April 1992.
4
placed under surveillance, and he was observed leaving it. His
nephew, appellant Virgil Barnes, remained at the house and handled
several calls from the CI.3 Virgil Barnes said that they were
concerned about getting the money for Cantu. After Harvey Barnes
returned, he, Virgil Barnes and Cantu were arrested; Harvey Barnes
and Cantu for the marijuana transaction in Monroe, and Virgil
Barnes for distribution of 1/2 kilogram of cocaine the prior
February.
Later in November, Harvey Barnes, Keck, Cantu, Carter,
Caldwell and Norwood were indicted. Harvey Barnes and Keck were
charged for conspiracy to distribute over 100 pounds of marijuana
(count 1) and the corresponding substantive offense (count 2). In
a superseding indictment against Harvey and Virgil Barnes, Keck and
Caldwell in February, Harvey and Virgil Barnes and Keck were
charged with conspiracy to distribute 100 kilograms (instead of the
earlier 100 pounds) or more of marijuana (count 1) and possession
of an unspecified amount of marijuana with intent to distribute
(count 2).
Having pled not guilty,4 Harvey and Virgil Barnes and Keck
pled guilty, signing plea agreements and affidavits of

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5
understanding of their maximum penalties and constitutional rights
in June 1992. Harvey Barnes pled guilty to count 1 of the
superseding indictment; Keck, to count 1 of the original
indictment. The superseding indictment was dismissed as to Virgil
Barnes; and, pursuant to a bill of information, he pled guilty to
distribution of an unspecified amount of cocaine.
In August, represented by new counsel, Harvey Barnes moved to
withdraw his guilty plea. The motion was denied at the sentencing
hearing on September 1, 1992; and he was sentenced, along with
Virgil Barnes and Keck. Harvey and Virgil Barnes and Keck were
sentenced, inter alia, to 235, 63, and 69 months in prison,
respectively.
II.
Harvey Barnes contests not being allowed to withdraw his plea;
each appellant challenges his sentence.
A.
1.
Harvey Barnes pled guilty to conspiracy to distribute 100 or
more kilograms of marijuana. A district court may allow a
defendant to withdraw a guilty plea at any time before sentencing
"upon a showing ... of any fair and just reason". Fed. R. Crim. P.
32(d). The defendant bears the burden of proving justification for
the withdrawal, and the district court is given broad discretion in
ruling on the motion. United States v. Carr, 740 F.2d 339, 344
(5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). We review

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6
only for abuse of discretion. United States v. Hurtado, 846 F.2d
995 (5th Cir.), cert. denied, 488 U.S. 863 (1988).
Seven factors must be considered in determining whether the
defendant has established any fair and just reason for the
withdrawal: (1) whether the defendant has asserted his innocence;
(2) whether the government would be prejudiced by withdrawal; (3)
whether the defendant delayed in filing the motion; (4) whether
withdrawal would substantially inconvenience the court; (5)
whether close assistance of counsel was available to the defendant;
(6) whether the original plea was knowing and voluntary; and (7)
whether withdrawal would waste judicial resources. United States
v. Carr, 740 F.2d at 343-44. The district court should look at the
totality of the circumstances; no single factor is determinative.
Indeed, it need not make a specific finding regarding each factor.
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
Because, as stated, the defendant has the burden of establishing
justification for withdrawal, it is Harvey Barnes's duty to
identify those factors he considers applicable. Id.
Barnes pled guilty on June 12, 1992. On July 31, he dismissed
his attorney and retained new counsel that week. With the
assistance of that lawyer (who is counsel on appeal), Barnes moved
on August 21 to withdraw his plea. In that motion, he stated why
each Carr factor weighed in his favor, but primarily relied on the
fifth and sixth factors, claiming that his prior counsel had not

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5 As further support for the contention that his counsel had
been ineffective, Harvey Barnes also asserted that the court lacked
jurisdiction and venue to hear his case because only 115 pounds of
marijuana were to be distributed in the western district of
Louisiana and that his prior attorney was ineffective because he
failed to point out these problems. This issue, however, was not
discussed when the court ruled on the motion (at sentencing) and
has not been pursued on appeal.
6 Harvey Barnes states summarily in his brief why each Carr
factor compels permitting withdrawal. Even considering all seven,
there was no abuse of discretion. See infra.
7
been helpful and his plea neither knowing nor voluntary.5 He
follows that quickly narrowed approach here.6
Harvey Barnes requested an evidentiary hearing on his motion;
but, instead, the district court discussed the motion with Barnes
and his new lawyer at the sentencing hearing. In denying the
motion, the court noted that its discussion with the defendant at
the plea hearing was unusually detailed and that it would have
yielded a knowing plea, even in the absence of competent counsel.
Based upon our review of the record, as discussed below, we do not
find an abuse of discretion.
At his plea hearing, Harvey Barnes twice answered
affirmatively when asked if he was satisfied with his lawyer's
representation. His lawyer stated that he and Barnes had spoken by
telephone "on several occasions" and had met that morning. When
asked if he had had all the time he needed to discuss the case with
his lawyer, Barnes initially answered, "I haven't had it, but I
just have to go along with it." The court counseled Barnes that he
did not have to "go along with it"; that he had "an absolute right
to a reasonable call on [his lawyer's] time". The court asked

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8
Barnes at least four times if he would like more time to discuss
the matter with his lawyer. He declined, stating that he would
"just like to go on and get it over with". The court persisted,
explaining Barnes's rights and telling him that he should not plead
guilty just because he is "giving up". But Barnes assured the
court, "I'm giving up because I am guilty of the crime".
The court also asked if Barnes had discussed Guidelines
sentencing with his lawyer. He said that he had. The court went
on, "Okay. Y'all talked about Guidelines sentencing. Do you
understand that until we get a presentence investigation no one can
tell you which guideline applies?" Barnes answered, "Yes, sir."
Yet, in his motion to withdraw, and here, Barnes contends that he
did not understand the maximum possible sentence, because he lacked
a working knowledge of the Sentencing Guidelines. However, no such
understanding of the technical application of the Guidelines was
required to grasp the court's clear explanation: "[y]ou are going
to jail for five years at the very least ... [a]nd it could go all
the way up to forty years". Barnes said he understood.
Now, however, Barnes asserts that informing a defendant of the
maximum possible sentence is simply not enough; that a "knowing"
plea is not possible under the Guidelines, unless the defendant
understands how they work. We disagree. Prior to enactment of the
Guidelines, our court concluded that a guilty plea was knowing and
voluntary, even though a defendant, although aware of the maximum
possible sentence, was unaware of the plea agreement negotiated
between the prosecutor and defense counsel. Bradbury v.

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7 In fact, he relied on this very discussion from Bradbury in
his motion to withdraw.
8 At oral argument before us, Barnes's counsel stated that the
district judge should have advised Barnes that one kilogram is the
equivalent of 2.2 pounds. He has not cited any authority which
might even imply that such instruction is required. Surely, the
district court need not ask every defendant charged with an amount
of drugs measured by the metric system whether he has mastered that
system. The mere suggestion borders on the absurd.
In any event, Harvey Barnes certainly understood that his plea
offense involved more than 100 pounds. For example, as discussed
in the text, he conceded that he kept 260 pounds of marijuana from
a several thousand pound shipment. (We note that 260 pounds is
significantly more than 100 kilograms (approximately 220 pounds).)
9
Wainwright, 658 F.2d 1083 (5th Cir. 1981), cert. denied, 456 U.S.
992 (1982). "As long as Bradbury understood the length of time he
might possibly receive, he was fully aware of his plea's
consequences." Id. at 1087. Because he was aware of those
consequences, our court concluded that the plea must stand, unless
it had been induced by misrepresentation. Barnes points to no
authority for his position that this standard has been usurped by
the Guidelines.7 It has not.
Finally, the district court asked Barnes if he "conspire[d]
... to distribute one hundred kilograms or more of marijuana". He
answered, "Yes, sir."8 An FBI agent then testified that Harvey
Barnes had provided the facility for offloading a two to three
thousand pound shipment of marijuana, keeping approximately 260
pounds. Barnes testified that he agreed with the agent's version.
It is difficult to imagine how the court could have more
thoroughly questioned Harvey Barnes about the adequacy of his legal
representation or his understanding of the plea he was entering.

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9 As noted, Harvey Barnes's counsel on appeal also represented
him at sentencing.
10
2.
Harvey Barnes challenges his sentence on several bases.
a.
Barnes claims a denial of due process, because the district
court required that relevant conduct be proved only by a
preponderance of the evidence. At sentencing, Barnes's attorney
conceded that the preponderance standard so applied; but, he now
asserts that he was wrong, that the clear and convincing standard
should apply when relevant conduct substantially increases the
sentence.9
Because this issue is raised for the first time on appeal, we
review it only for plain error. United States v. Lopez, 923 F.2d
47, 49 (5th Cir.), cert. denied, __ U.S. __, 111 S. Ct. 2032
(1991). Plain error is that which, "when examined in the context
of the entire case, is so obvious and substantial that failure to
notice and correct it would affect the fairness, integrity or
public reputation of judicial proceedings"; "a mistake so
fundamental that it constitutes a `miscarriage of justice'". Id.
at 50 (citations omitted). The standard of proof agreed to by
Barnes at sentencing having then been applied, it is far too late
in the day for him to urge a new one. There is no plain error.

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11
b.
Barnes contends that the district court also erred in using
his uncorroborated statements as proof of relevant conduct, noting
that "a conviction must rest upon firmer ground than the
uncorroborated admission or confession of the accused". Wong Sun
v. United States, 371 U.S. 471, 488-89 (1963). But, the issue is
not whether he can be convicted on that basis. The issue is
whether his statements may be the sole basis for the findings on
relevant conduct. We conclude that they may.
After being arrested, Barnes stated that he had expected a 400
pound shipment of marijuana on November 8, and that he had
negotiated for 100 kilograms of cocaine. These amounts were used
as part of his relevant conduct in calculating the base offense
level. He does not assert that he did not make the statements. He
contends only that they are an insufficient basis for the finding.
Of course, we review findings under the clearly erroneous standard.
United States v. Ponce, 917 F.2d 841 (5th Cir. 1990), cert. denied,
__ U.S. __, 111 S. Ct. 1398 (1991).
In sentencing, the district court may consider any information
"with sufficient indicia of reliability to support its probable
accuracy". United States v. Rodriguez, 897 F.2d 1324, 1326 (5th
Cir.), cert. denied, 498 U.S. 857 (1990) (quotations omitted).
Barnes offers no evidence which contradicts his statements, nor
does he argue that they are inherently unreliable. In short, there
was no clear error.

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10 Section 1B1.3(a)(2) provides:
solely with respect to offenses of a character for
which §3D1.2(d) would require grouping of multiple
counts, [relevant conduct includes] all such acts
and omissions that were part of the same course of
conduct or common scheme or plan as the offense of
conviction.
U.S.S.G. § 1B1.3(a)(2).
12
c.
Finally, Harvey Barnes asserts that the two foregoing facts
regarding relevant conduct, as well as two others, were simply not
established under any standard of proof; and, even if established,
are not relevant, because they are not part of a common scheme or
plan as contemplated by Sentencing Guidelines § 1B1.3(a)(2).10
As stated, the findings regarding the 400 pounds of marijuana
and 100 kilograms of cocaine were not clearly erroneous. Barnes
also challenges the findings that he sold at least 300 pounds of
marijuana to Caldwell between 1988 and 1991, and that he was
responsible for Virgil Barnes's February 1991 sale of 1/2 kilogram
of cocaine. As discussed below, based on our review of the record,
we conclude, again, that the district court did not clearly err.
In his post-arrest statement, Keck admitted that he had made
about 15 trips to Monroe in the approximate two prior years to
deliver marijuana for Harvey Barnes, transporting between 20 and 30
pounds on each occasion. In a post-arrest interview in December
1991, Harvey Barnes stated that he had sold approximately 200
pounds of marijuana to Caldwell between 1988 and 1991. Both
statements support a finding that such transactions took place.

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13
Although there is some difference regarding amount, this does not
make the finding clearly erroneous. The district court might well
have found Keck's version more reliable than Barnes's; and a
finding that Harvey Barnes was responsible for the sale of at least
300 pounds of marijuana to Caldwell is most plausible. It is
equally plausible that Virgil Barnes's February 1991 delivery of
1/2 kilogram of cocaine was made on behalf of Harvey Barnes, his
uncle. At his plea hearing, Virgil Barnes agreed with an FBI
agent's statement that he made the delivery for Harvey Barnes. The
finding is not clearly erroneous.
Harvey Barnes ran an extensive and ongoing drug distribution
operation. Each transaction discussed supra was part of that
operation and was appropriately included as relevant conduct in
formulating his base offense level.
B.
Virgil Barnes challenges the relevant conduct used in
calculating his base offense level, and claims the benefit of two
post-sentencing amendments to the Guidelines.
1.
Virgil Barnes pled guilty to distribution of an unspecified
amount of cocaine. His base offense level was increased because
his involvement in the conspiracy to distribute more than 100
kilograms of marijuana was considered relevant conduct. This
finding is not clearly erroneous.
In a post-arrest statement, Virgil Barnes admitted that he was
present when the 260 pounds of marijuana were delivered to Harvey

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14
Barnes's residence. He said that he was fully aware of the scope
of that transaction, but denied participating in it. However, his
involvement is further evidenced by his presence at Harvey Barnes's
home on November 7. While Harvey Barnes was away from the house,
Virgil Barnes remained to handle telephone calls from the CI. He
urged the CI to deliver the money from the Monroe transaction
because the source was waiting for it.
Virgil Barnes does not deny either his presence at his uncle's
(Harvey Barnes's) house or his knowledge of the transactions. He
contends, rather, that his actions in February (distribution of
cocaine) and on November 7 are not part of a common plan or scheme.
The district court summarily overruled this objection.
We agree that Virgil Barnes's distribution of cocaine in
February and his involvement in the distribution of marijuana in
November were part of a common plan or scheme. The PSR for Virgil
Barnes states that, on February 14, Harvey Barnes met with a
confidential informant (CI) and offered to sell 1/2 kilogram of
cocaine. Three days later, the CI received a telephone call from
Harvey Barnes, notifying him that Virgil Barnes was on his way to
deliver the cocaine. At Virgil Barnes's plea hearing, an FBI agent
testified that Barnes had delivered the cocaine in consummation of
a deal negotiated between Harvey Barnes and an undercover agent.
Virgil Barnes agreed with this version.
Virgil Barnes's February cocaine delivery was made on behalf
of his uncle, Harvey Barnes. The marijuana transactions on
November 6 and 7 took place under Harvey Barnes's direction. In

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15
short, both transactions were part of Harvey Barnes's ongoing drug
distribution.
2.
Virgil Barnes also contends that two amendments to the
Sentencing Guidelines, effective November 1, 1992, should be
applied to his sentence, imposed that September. Of course, a
defendant is generally sentenced according to the Guidelines then
in effect. United States v. Ainsworth, 932 F.2d 358, 362 (5th
Cir.), cert. denied, __ U.S. __, 112 S. Ct. 346 (1991). There are
two limited exceptions; neither are applicable.
First, when a sentence is increased by an amendment effective
after the commission of the offense, and that increase affects
substantial rights, its applicability to the defendant would be an
ex post facto violation. See United States v. Canales, 960 F.2d
1311, 1314 (5th Cir. 1992). That is not the case here.
Second, the Guidelines give retroactive effect to certain
amendments. Section 1B1.10 states, in pertinent part:
(a) Where a defendant is serving a term of
imprisonment, and the guideline range applicable to
that defendant has subsequently been lowered as a
result of an amendment to the guidelines listed in
subsection (d) below, a reduction in the
defendant's term of imprisonment may be
considered.... If none of the amendments listed in
subsection (d) is applicable, a reduction ... is
not consistent with this policy statement.
Subsection (d) lists amendments by the number they are assigned in
Appendix C to the Guidelines. Virgil Barnes seeks the benefit of
subsequent amendments to § 1B1.3 (number 439) and § 3E1.1 (number

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16
459); but neither is listed in subsection (d). Accordingly, they
are not applied retroactively.
C.
Franklin Keck pled guilty to conspiracy to distribute over
100 pounds of marijuana. After his arrest, he signed a proffer
agreement and gave an extensive statement. He contends that, in
violation of the proffer agreement, information from his statement
was used as relevant conduct to increase his base offense level.
Moreover, he asserts that his uncorroborated statement lacked
sufficient reliability and specificity to form the basis for a
finding on relevant conduct.
1.
The proffer agreement states, in part, that
neither statements nor information provided during
the proffer will be used directly against Franklin
A. Keck in any criminal case, excepting use as
impeachment of rebuttal evidence.... The United
States reserves the right to make derivative use of
and to pursue any investigative leads suggested by
any statements made or information provided during
the proffer.
As discussed earlier, Keck admitted in his statement that, over the
prior approximate two years, he had made about 15 trips to Monroe
for Harvey Barnes, each time delivering 20 to 30 pounds of
marijuana to Caldwell. In calculating Keck's base offense level,
the probation officer conservatively assumed that Keck had
delivered 300 pounds of marijuana during this period. Using this
as relevant conduct, the estimate was converted to 136 kilograms
and added to the 52.16 kilograms involved in the offense of
conviction. This yielded a total of 188.16 kilograms. Guideline

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17
§ 2D1.1(c)(9) assigns a base offense level of 26 when the
applicable amount of marijuana is between 100 and 400 kilograms.
The government contends that it did not use Keck's statement
directly against him, because that information was corroborated at
his sentencing by other witnesses. It also asserts that any
possible error is immaterial, because there was sufficient evidence
that Keck was involved in the entire 260 pound shipment received by
Harvey Barnes, and that amount, although not used as relevant
conduct against Keck, could have been so used, and would have
yielded an identical base offense level.
The corroboration is a statement by an FBI agent that several
of the other defendants confirmed that Keck had been transporting
marijuana into Louisiana "approximately that many number of times".
But, this does not corroborate the amount transported. And, there
was no attempt at sentencing to hold Keck responsible for the 260
pound shipment received by Harvey Barnes.
The information used to calculate Keck's relevant conduct came
from his statement. Indeed, the PSR included 300 pounds of
marijuana as relevant conduct on the basis of what "Keck advised".
The district court concluded that use of Keck's statement was not
violative of the proffer agreement, because it was being used only
for sentencing. Assuming, without deciding, that such use violates
the agreement, we conclude that the error is harmless, because it
would not affect Keck's base offense level.
The proffer agreement specifically reserves to the government
the right to follow investigative leads suggested by Keck's

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11 A transcript of this recorded interview was filed in the
district court on April 20, 1992, in response to a discovery
request from Keck.
18
statement. It was, therefore, well within the parameters of that
agreement to discuss the alleged transactions with Caldwell, the
recipient of the deliveries. Caldwell stated in his post-arrest
interview that there had been approximately 12 such deliveries and
that each involved approximately 10 pounds of marijuana.11 This
partially corroborates Keck's statement, but not as to the larger
amount. Therefore, it would have been appropriate for the PSR to
include these transactions as relevant conduct, but the amount
would be 120, rather than 300, pounds. The lesser amount converts
to approximately 54.5 kilograms. Added to the offense of
conviction amount of 52.16 kilograms, Keck should have been held
accountable for 106.66 kilograms of marijuana. As noted, §
2D1.1(c)(9) assigns a base offense level of 26 for amounts between
100 and 400 pounds of marijuana. Therefore, the same base offense
level applies. Accordingly, it is not necessary to remand for
resentencing.
2.
In the alternative, Keck contends that his statement was
uncorroborated, and, therefore, lacked reliability for a finding on
relevant conduct. Assuming that Keck's statement could have been
used against him, it was corroborated in part by at least two other
witnesses. Therefore, the relevant conduct finding was erroneous
only as to the amount. We have already concluded that any error
did not affect Keck's substantial rights.

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19
III.
For the foregoing reasons, the conviction and sentence for
Harvey Barnes are AFFIRMED, as are the sentences for Franklin Keck
and Virgil Barnes.
AFFIRMED.

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