     Case: 12-41443      Document: 00512553153         Page: 1    Date Filed: 03/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-41443
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 7, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JARVIS ALLEN CONWAY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CR-139-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Jarvis Allen Conway appeals the district court’s
denial of his motion to withdraw his guilty plea to two counts of Hobbs Act
robbery and one count of brandishing a firearm during a crime of violence. In
accordance with a plea agreement entered under Federal Rule of Criminal
Procedure 11(c)(1)(C), the district court sentenced Conway to 360 months of
imprisonment. Conway states that it was within the district court’s discretion


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-41443    Document: 00512553153     Page: 2   Date Filed: 03/07/2014


                                 No. 12-41443

to grant his motion to withdraw the guilty plea and that there was a fair and
just reason for doing so. The government counters that Conway’s appeal is
barred by the waiver provision contained in the plea agreement. Alternatively,
the government contends that the district court did not abuse its discretion by
denying Conway’s motion to withdraw his guilty plea.
      Conway may raise his argument regarding the denial of his motion to
withdraw his guilty plea because an appellate waiver provision is not valid
unless both the plea and the waiver were knowingly and voluntarily entered.
See United States v. Arbuckle, 390 F. App’x 412, 414 (5th Cir. 2010); see also
United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). A defendant may
withdraw his plea before sentencing if he establishes “a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). Seven factors are
considered: (1) whether the defendant has asserted his innocence; (2) whether
withdrawal would prejudice the government; (3) whether the defendant has
delayed in filing his withdrawal motion; (4) whether withdrawal would
substantially inconvenience the court; (5) whether close assistance of counsel
was available; (6) whether the original 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). The district court must consider the
totality of the circumstances, although it “is not required to make a finding as
to each individual factor.” United States v. McKnight, 570 F.3d 641, 646 (5th
Cir. 2009).
      We review the district court’s decision to deny a motion to withdraw for
abuse of discretion. Id. at 645. The “‘district court abuses its discretion if it
bases its decision on an error of law or a clearly erroneous assessment of the
evidence.’” Id. (quoting United States v. Mann, 161 F.3d 840, 860 (5th Cir.
1998)).



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                                  No. 12-41443

      The district court concluded that, under the totality of the circumstances,
the Carr factors did not support granting Conway’s motion to withdraw his
guilty plea. Conway concedes that at least three of the Carr factors weigh
against him. We conclude that his challenges with regard to the remaining
factors are insufficient to establish that the district court abused its discretion
by denying the motion to withdraw his guilty plea. Id. The judgment is
AFFIRMED.




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