Case: 21-30608 Document: 00516586006 Page: 1 Date Filed: 12/21/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 21, 2022 No. 21-30608 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus David Tran, (78), Defendant—Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CR-217 Before Graves, Willett, and Engelhardt, Circuit Judges. Per Curiam:* David Tran appeals the district court’s denial of his motion to withdraw his guilty plea without an evidentiary hearing. Because we find that the district court abused its discretion, we VACATE and REMAND for an evidentiary hearing. * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-30608 Document: 00516586006 Page: 2 Date Filed: 12/21/2022 No. 21-30608 Facts and Procedural History David Tran1 was charged by superseding indictment with four counts pertaining to a drug conspiracy. Tran’s first two attorneys were allowed to withdraw, and Robert C. Jenkins was then appointed as his counsel. 2 Trial was set for February 10, 2020. On February 3, 2020, Tran wrote a letter to the court seeking a continuance because Jenkins allegedly had only met with him once for less than ten minutes and was not prepared for trial. Tran also indicated that he had difficulty translating between English and Vietnamese. The district court ultimately denied the motion. On February 10, 2020, following jury selection, Tran pleaded guilty to all four counts without the benefit of a plea agreement and sentencing was scheduled. Tran and Jenkins both signed the factual basis outlining the circumstances of the offenses. The district court also conducted a colloquy with Tran before accepting his plea. There was no discussion of any suppression motion, or the waiver thereof, and the difference between conditional and unconditional pleas. On September 21, 2020, Tran, pro se, sought to remove Jenkins as counsel. Tran asserted that Jenkins refused to visit, consult with him, answer calls or texts, or provide requested information. Tran also asserted that Jenkins had “committed grievous errors” prior to his plea and that he planned to pursue collateral claims based on counsel’s deficient 1 The pleadings refer to the appellant as “David Tran (78)” based on his year of birth and the fact that a codefendant, who is not relevant here, has the same name. 2 Gary Schwabe and Stephen H. Shapiro were the first two lawyers. 2 Case: 21-30608 Document: 00516586006 Page: 3 Date Filed: 12/21/2022 No. 21-30608 performance. Thus, Tran said counsel had a conflict of interest. Tran’s motion for replacement counsel was denied. On October 6, 2020, Jenkins moved for a continuance of sentencing, indicating that he needed more time to review the Presentence Investigation Report (PSR) with Tran and that COVID had interfered with his ability to meet with Tran. The district court granted the continuance. Sentencing was rescheduled for January 13, 2021. On November 27, 2020, Tran filed a second letter motion to dismiss Jenkins for cause, citing irreconcilable differences. Tran …
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