United States v. Witt

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 29, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51216
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE EARL WITT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-131-1
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Donnie Earl Witt challenges his conviction and sentence for
sexually exploiting a child through the production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e). First
he asserts that the district court abused its discretion in
denying his motion to withdraw his guilty plea. We find no abuse
of discretion because Witt has not shown a fair and just reason
why the plea should be withdrawn. He freely admits that he
induced, enticed, and/or coerced the victim into participating in

-- 1 of 3 --

No. 05-51216
-2-
the production of sexually explicit material. Under such
circumstances, the Government would be prejudiced, the district
court would be inconvenienced, and judicial resources would be
wasted if he were allowed to change strategies and pursue a plea
of not guilty--especially because he waited until the morning of
his original trial to enter the guilty plea and delayed 25 days
before moving to withdraw it. Moreover, the record shows that he
received adequate assistance from counsel and that the guilty
plea was knowingly and voluntarily entered. See United States v.
Adam, 296 F.3d 327, 332-33 (5th Cir. 2002); United States v.
Carr, 740 F.2d 339, 343-45 (5th Cir. 1984).
Next Witt asserts that there was an insufficient nexus
between the crime of conviction and a high speed chase he caused
to justify a sentencing enhancement for reckless endangerment.
However, Witt stipulated in the plea agreement that the sexually
explicit photographs were in the car during the high speed chase
and that they were being shipped in interstate commerce at the
time. Accordingly, there was no error in the district court’s
application of the enhancement. See United States v.
Southerland, 405 F.3d 263, 268 (5th Cir. 2005); § 2251(a).
Finally, Witt asserts that the judgment should be corrected
to omit a reference to 18 U.S.C. § 25. He argues that the
Government agreed to drop the sentencing enhancement under that
section in exchange for his guilty plea. Although the Government
joins Witt’s request, this court lacks the authority to correct

-- 2 of 3 --

No. 05-51216
-3-
the judgment. Instead, Federal Rule of Criminal Procedure 36
gives authority to correct clerical errors to the sentencing
court. See Accardi v. Blackwell, 412 F.2d 911, 913 (5th Cir.
1969).
For the foregoing reasons, we AFFIRM the district court’s
judgment and REMAND for the limited purpose of correcting the
judgment to omit reference to § 25 under Federal Rule of Criminal
Procedure 36.

-- 3 of 3 --