United States v. Fortion Rios-Martinez

Case: 16-40514 Document: 00513848746 Page: 1 Date Filed: 01/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40514
Fifth Circuit
Summary Calendar
FILED
January 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
FORTION RIOS-MARTINEZ, true name Fortino Rios-Martinez,
Defendant-Appellant
c/w No. 16-40513
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FORTINO RIOS MARTINEZ, also known as Rafael Rios Martinez,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-1365-1
USDC No. 5:08-CR-1081-1
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No. 16-40514
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Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges
PER CURIAM: *
Fortino Rios-Martinez appeals his most recent conviction and sentence
for illegal reentry as well as the revocation of his term of supervised release
imposed in his 2008 illegal reentry case. He argues that the district court erred
by denying his motion to withdraw his guilty plea.
We review for an abuse of discretion, considering the factors set forth in
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). See United States
v. London, 568 F.3d 553, 562-63 (5th Cir. 2009). Rios-Martinez testified under
oath during rearraignment that he was pleading guilty voluntarily and that he
was satisfied with the Assistant Federal Public Defender’s performance, and
these “solemn declarations in open court carry a strong presumption of verity.”
United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009) (internal
quotation marks and citation omitted). Rios-Martinez’s unsupported
assertions that he was coerced to reenter the United States and to plead guilty
are not sufficient to assert his innocence, especially since he does not attempt
to address the aforementioned sworn testimony. See London, 568 F.3d at 563.
In his motion to withdraw his plea below, Rios-Martinez estimated that
his jury trial would take two days, which is not so insubstantial as to
“necessitate a finding that there is no inconvenience to the district court.”
McKnight, 570 F.3d at 650. He does not address, much less challenge, the
district court’s holdings that the remaining Carr factors weigh against him,
nor does he brief adequately his assertion that the revocation of his supervised
* 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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release must be vacated. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993); FED. R. APP. P. 28(a)(8).
AFFIRMED.
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