     Case: 16-11548           Document: 00514014750     Page: 1   Date Filed: 06/01/2017




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-11548
                                                                                  Fifth Circuit

                                                                                FILED
                                    Summary Calendar                         June 1, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

BENITO LEE PEREZ,

                                                 Defendant-Appellant


                       Appeal from the United States District Court
                            for the Northern District of Texas
                                 USDC No. 1:15-CR-85-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
         Benito Lee Perez pleaded guilty pursuant to a written plea agreement to
conspiracy to distribute and possess with intent to distribute 50 grams or more
of   a       mixture     or    substance   containing     a   detectable       amount              of
methamphetamine. Six weeks after entering his guilty plea and after the
district court accepted the plea, Perez moved to withdraw it, arguing that his
motion should be granted because “his plea was not voluntary.” He did not


         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. 16-11548

elaborate further, but he urged the court to grant a hearing on his motion so
that he could “express to the [c]ourt his reasons for requesting [to] withdraw
his guilty plea.” At sentencing, the district court stated that it had considered
the factors outlined in United States v. Carr, 740 F.2d 339 (5th Cir. 1984), and
concluded that Perez’s motion to withdraw his guilty plea should be denied.
Perez now challenges the district court’s denial of his motion to withdraw his
guilty plea and its decision to do so without holding a hearing on the motion. 1
       We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). When
determining whether to allow a defendant to withdraw his guilty plea, the
district court should consider whether (1) the defendant has asserted his
innocence, (2) withdrawal would prejudice the Government, (3) the defendant
delayed in filing the withdrawal motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was available, (6) the
plea was knowing and voluntary, and (7) withdrawal would waste judicial
resources. Carr, 740 F.2d at 343-44.
       Perez’s assertion that his guilty plea was involuntary directly
contradicted his plea colloquy where he stated that he was pleading guilty
because he was guilty and affirmed that no one had threatened him or made
promises to induce him to plead guilty. A defendant’s solemn declarations in
open court carry a strong presumption of truth. Blackledge v. Allison, 431 U.S.
63, 74 (1977).
       In his motion to withdraw his guilty plea, Perez did not assert his
innocence. Though he speculates that he might have asserted his innocence

       1 We need not determine whether the appellate waiver provision in Perez’s plea
agreement bars this appeal because the Government does not seek to enforce it. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (“In the absence of the [G]overnment’s
objection to Story’s appeal based on his appeal waiver, the waiver is not binding because the
[G]overnment has waived the issue”).


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                                       No. 16-11548

had the district court granted a hearing on his motion, such speculation is not
an assertion of innocence. Perez also waited six weeks after pleading guilty to
file his motion and did not offer any reason for the delay. Perez acknowledges
that this court has previously held that a delay of even four weeks weighed
against granting a motion to withdraw. ECF 21, 24; United States v. Gray, 717
F.3d 450, 451 (5th Cir. 2013) (per curium); see also United States v. Thomas,
13 F.3d 151, 153 (5th Cir. 1994) (stating that a six-week delay between the
entry of the plea and the motion to withdraw was significant). Perez does not
address the district court’s conclusion that the remaining Carr factors weighed
against granting the motion; therefore, he has waived any argument with
respect to the court’s consideration of those factors.               See United States v.
Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000); Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993) (“[A]rguments must be briefed to be preserved”); FED. R.
APP. P. 28(a)(8).
       Given the facts of this case, Perez has failed to demonstrate a fair and
just reason for the withdrawal of his guilty plea, and the district court did not
abuse its discretion in denying the motion. See FED. R. CRIM. P. 11(d)(2)(B);
McKnight, 570 F.3d at 645.
       Perez also challenges the district court’s failure to hold an evidentiary
hearing on his motion to withdraw his guilty plea. He points out that the
motion presented by his attorney offered little in the way of analysis, and he
asserts that an evidentiary hearing was necessary to develop the reasons
supporting the motion. 2


       2  To the extent that Perez’s complaint about his attorney’s efforts in drafting the
motion to withdraw can be read as a claim of ineffective assistance of counsel, such a claim
was not presented to the district court, and the record is not sufficiently developed for its
consideration on direct appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014)
(stating that, except in rare circumstances, “claims of ineffective assistance of counsel should
not be litigated on direct appeal, unless they were previously presented to the trial court”).


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                                 No. 16-11548

      A district court’s decision not to hold an evidentiary hearing on a motion
to withdraw a guilty plea is reviewed for an abuse of discretion. United States
v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). While a defendant is not entitled
to a hearing, “a hearing is required when the defendant alleges sufficient facts
which, if proven, would justify relief.”   Id. (internal quotation marks and
citation omitted).
      As detailed above, Perez has not shown that any of the factors favored
withdrawal of his guilty plea and, therefore, has not shown a fair and just
reason for withdrawing his plea. Accordingly, he has not alleged sufficient
facts, which, if proven, would justify relief, nor has he shown that the district
court abused its discretion by not holding a hearing. See id.
      The judgment of the district court is AFFIRMED.




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