United States v. Gonzalez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2009
No. 06-41053
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ERNEST GONZALEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-70-2
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Ernest Gonzalez appeals his guilty plea conviction for conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Gonzalez contends that the district
court abused its discretion when it denied his motion to withdraw his guilty plea.
This court reviews the denial of a motion to withdraw for abuse of
discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 06-41053
no absolute right to withdraw a guilty plea, and the defendant bears the burden
of establishing a “fair and just reason” for withdrawal. Id. In determining
whether the defendant has met this standard, this court reviews seven factors:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal
would prejudice the government; (3) whether the defendant delayed in filing the
withdrawal motion; (4) whether withdrawal would inconvenience the court;
(5) whether close assistance of counsel was available; (6) whether the plea was
knowing and voluntary; and (7) whether withdrawal would waste judicial
resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). In
applying these factors, courts are to consider the totality of the circumstances.
Id. at 344.
Given the absence of a credible assertion of innocence, the delay in filing
the motion, the possible inconvenience and waste of judicial resources,
Gonzalez’s statements at the rearraignment hearing, and the totality of the
circumstances, the district court did not abuse its discretion when it denied
Gonzalez’s motion to withdraw his guilty plea. See id. at 343-44. Accordingly,
the district court’s judgment is AFFIRMED.
2