     Case: 15-41709      Document: 00513717429         Page: 1    Date Filed: 10/13/2016




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


                                    No. 15-41709
                                                                                 FILED
                                                                          October 13, 2016
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ROBERTO OBREGON, also known as “Minutitos”,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:12-CR-224-5


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Roberto Obregon appeals his guilty plea conviction for conspiracy to
export firearms in violation of 18 U.S.C. § 371 and § 554 and 22 U.S.C. § 2778.
Obregon challenges the district court’s denial of his motions to withdraw his
guilty plea. He argues that he should be permitted to withdraw his guilty plea
based on his claim of poor communication with his attorney and a claim of
actual innocence made more than two years after his guilty plea.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41709

      This court reviews 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).   The district court’s decision must be accorded “broad discretion.”
United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984).
      A defendant may withdraw his guilty plea that the district court has
accepted if “the defendant can show a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In assessing whether there is a fair
and just reason for the withdrawal of the guilty plea, the court must consider
seven factors: (1) whether the defendant asserted his innocence; (2) whether
the Government would suffer prejudice if the withdrawal motion was granted;
(3) whether the defendant delayed in filing his withdrawal motion; (4) whether
the withdrawal would substantially inconvenience the court; (5) whether close
assistance of counsel was available to the defendant; (6) whether the original
plea was knowing and voluntary; and (7) whether the withdrawal would waste
judicial resources. Carr, 740 F.2d at 343-44. The Carr factors are considered
in the totality of the circumstances, and the district court is not required to
make a finding as to each individual factor. United States v. Powell, 354 F.3d
362, 370 (5th Cir. 2003).
      Obregon’s complaints about his attorney implicate two Carr factors:
whether the nature of his plea was knowing and voluntary and whether he had
close assistance of counsel. Although Obregon broadly asserts that he had
difficulty communicating with his attorney and the district court, the record
reveals otherwise. The copiously detailed colloquy between the district court
and Obregon at the rearraignment hearing and the initially scheduled
sentencing hearing demonstrates a thorough discussion of Obregon’s plea in
plain language.   On multiple occasions in open court, Obregon stated he
understood the district court’s plain language explanation.        Moreover, the



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                                  No. 15-41709

district court reviewed the plea agreement with Obregon and specifically noted
the detail-oriented hand-written changes to the plea agreement initialed and
signed both by Obregon and his attorney. His attorney also noted that she had
discussions of these points with Obregon. The record thus does not support
Obregon’s assertion that his plea was involuntary or that he lacked close
assistance of counsel at the time of his plea.
      Likewise, Obregon’s claim of actual innocence is insufficient to merit
withdrawal of his guilty plea, particularly considering that it came over two
years after his guilty plea. Obregon’s repeated admissions of guilt in writing
and under oath in open court over the years easily outweigh his eleventh-hour
claim of innocence. Carr, 740 F.2d at 344 (explaining that an assertion of
innocence is far from sufficient to warrant withdrawal of a guilty plea and that
“the longer a defendant delays in filing a withdrawal motion, the more
substantial reasons he must proffer in support of his motion”); see also United
States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991) (explaining that an assertion
of innocence, “absent a substantial supporting record will not be sufficient to
overturn a denial of a motion to withdraw” (citing Carr, 740 F.2d at 344)).
      Lastly, while Obregon was charged and convicted under, inter alia, 22
U.S.C. § 2778, the judgment incorrectly lists the statute of conviction as 22
U.S.C. § 2278. In light of this clerical error, we remand the case to the district
court for the limited purpose of correcting the judgment to list the correct
statute of conviction. FED. R. CRIM. P. 36.
      AFFIRMED; LIMITED REMAND to correct clerical error in the
judgment.




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