United States v. George Martinez ( 2017 )

Case: 15-51006 Document: 00513824786 Page: 1 Date Filed: 01/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 15-51006 FILED
Summary Calendar January 6, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
GEORGE ALEXANDER MARTINEZ, also known as Alex Martinez, also
known as Pelon, also known as Porn Star, also known as George Martinez, also
known as Perez, also known as Laidnpaid, also known as Pornstar,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:14-CR-159-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
George Alexander Martinez appeals the district court’s denial of his motion
to withdraw his guilty plea. Martinez pleaded guilty to transporting a minor
for sex. 18 U.S.C. § 2423(a). After the presentence report had been prepared
and a sentencing date set, and six months after he pleaded guilty, Martinez
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-51006
filed a motion to withdraw his guilty plea. The district court denied the motion
and sentenced Martinez to 262 months of imprisonment.
Martinez argues that the district court abused its discretion in denying
his motion to withdraw his guilty plea. In particular, he asserts that he
asserted his innocence, that the Government would suffer no prejudice from
his withdrawal of his plea, that he filed his motion to withdraw very soon after
he was appointed counsel after the withdrawal of the Federal Public Defender,
and that his guilty plea was unknowing and involuntary. We review the denial
of Martinez’s motion to withdraw his guilty plea for abuse of discretion,
considering the district court’s analysis of the factors listed in United States v.
Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), under the totality of the
circumstances. United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009).
To support his claims, Martinez refers to his unsworn assertions at the
hearing on the motion to withdraw his plea. Martinez, however, explicitly
declined to reiterate any of those allegations under oath at that hearing.
Under oath at the rearraignment, on the other hand, Martinez specifically
affirmed that he was satisfied with his attorney, that he was not forced to plead
guilty, that he signed his plea agreement of his own free will, that he read the
agreement before signing it, that he reviewed it with his attorney and asked
questions which his attorney answered, and that he reviewed specifically the
factual basis for his plea and agreed that he was pleading guilty to that basis.
Further, he affirmed under oath that he understood that he faced a statutory
minimum term of 10 years of imprisonment, that he faced a statutory
maximum term of life imprisonment, that the guidelines were advisory only,
that any agreement he reached about sentencing with the Government was
nonbinding on the district court, and that the district court might reject such
an agreement. Such “[s]olemn declarations in open court carry a strong
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No. 15-51006
presumption of verity,” which is untouched by Martinez’s unsworn statements
at the hearing on his motion to withdraw his plea. Blackledge v. Allison, 431
U.S. 63, 74 (1977).
In addition to reviewing the voluntariness of Martinez’s plea and the
close assistance he received from “very effective counsel,” the district court
noted the prejudice faced by the Government as to the evidence not obtained
and witnesses released after Martinez’s plea. See United States v. Simmons,
497 F.2d 177, 179 (5th Cir. 1974). Further, the district court noted the delay
in the challenge to his plea; Martinez first raised a question about his guilty
plea when he sought the withdrawal of the Federal Public Defender, which he
did almost five months after pleading guilty, almost three months after
preparation of the initial presentence report, and after a sentencing date had
been set. See Carr, 740 F.2d at 345.
Under the totality of these circumstances, we conclude that the district
court acted within its “broad discretion” in denying Martinez’s motion to
withdraw his guilty plea. McKnight, 570 F.3d at 649. The judgment of the
district court is AFFIRMED.
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