     Case: 14-40163      Document: 00512905415         Page: 1    Date Filed: 01/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40163
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 16, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOHN DAVID GEBARA, also known as Blast, also known as Big Blast,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-247-7


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       John David Gebara pleaded guilty pursuant to a written plea agreement
to conspiracy to distribute more than five kilograms of cocaine and was
sentenced to the statutory minimum 120-month term of imprisonment and a
five-year term of supervised release. After pleading guilty but before being
sentenced, Gebara moved to withdraw his guilty plea on the ground that his
decision to plead guilty was based on a promise that he would receive a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40163

reduction in his sentence pursuant to U.S.S.G. § 5K1.1 if he agreed to testify
against the only remaining codefendant. The district court denied the motion
after examining the factors set forth by this court in United States v. Carr, 740
F.2d 339 (5th Cir. 1984). 1 Gebara timely appealed. 2
       The determination of whether to allow a plea to be withdrawn is based
upon the totality of the circumstances, taking into account the Carr factors.
See United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009); see also
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991) (“No single [Carr]
factor or combination of factors mandates a particular result.”). We review for
abuse of discretion. McKnight, 570 F.3d at 645.
       In his motion, Gebara asserted that he was moving to withdraw his plea
“because of his detrimental reliance upon the government’s representations
that it would allow [him] to testify in exchange for the possibility of a [§] 5K1.1
downward departure.” On appeal, however, he argues that he relied on his
counsel’s promise that he would receive a § 5K1.1 reduction.
       Although defense counsel stated during the hearing on Gebara’s motion
to withdraw his guilty plea that he advised Gebara that he could get a sentence
under the statutory minimum if he agreed to testify, defense counsel
acknowledged that the Government did not explicitly promise that it would
move for a § 5K1.1 reduction. Rather, it was counsel’s understanding based on



       1  These factors are (1) whether the defendant asserted his innocence; (2) prejudice to
the government; (3) delay in filing the motion to withdraw; (4) whether withdrawal would
substantially inconvenience the court; (5) the availability of close assistance of counsel; (6)
voluntariness of the original plea; and (7) whether withdrawal would waste judicial
resources. Carr, 740 F.2d at 343-44.
        2 Gebara does not address the Government’s assertion that the plea agreement bars

his appeal. However, a waiver of appeal is not valid unless both the defendant’s guilty plea
and the waiver of appeal were knowingly and voluntarily entered. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). Given that Gebara challenges the validity of his guilty
plea, which the Government has addressed on the merits, the waiver does not bar this appeal.
See id.


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                                 No. 14-40163

the Government’s responses and counsel’s years of experience that Gebara
would receive a § 5K1.1 reduction if he agreed to testify. Moreover, the plea
agreement expressly addressed the issue of substantial assistance and
unequivocally provided that the recommendation of any departure pursuant to
§ 5K1.1 was in the government’s “sole discretion” and that Gebara’s
cooperation did “not automatically require the government to request a
downward departure or a reduction in sentence.” The district court did not err
in its consideration of the voluntariness factor.
      Gebara also has failed to show the district court abused its broad
discretion based on the remaining Carr factors.          Gebara did not move to
withdraw his guilty plea until almost six months after the change of plea
hearing and more than two months after defense counsel received confirmation
from the Government that it would not present Gebara to the substantial
assistance committee.     This court has found that shorter delays weighed
against the granting of a motion to withdraw. See Carr, 740 F. 2d at 344
(holding that a 22-day delay weighed against granting the motion); see also
United States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994) (noting that the
defendant’s assertion that his guilty plea was based on bad advice from his
attorney would have carried more weight if the defendant had not waited six
weeks before moving to withdraw his plea).
      Further, the record reflects, and Gebara acknowledges, that defense
counsel engaged in lengthy negotiations with the Government in an effort to
reach an agreement whereby Gebara would not be subject to the 10-year
statutory minimum. That counsel’s advice that Gebara would be considered
for a § 5K1.1 reduction if Gebara agreed to testify was ultimately incorrect in
this case does not mean that Gebara did not receive close counsel.               See
McKnight, 570 F.3d at 646.



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      Gebara also does not refute the district court’s determination that
withdrawal would substantially inconvenience the court and waste judicial
resources. The district court based its determination on the fact that the one
codefendant who opted to proceed to trial on the conspiracy charge was tried
by a jury approximately nine months earlier and that the trial had lasted four
days. Because the district court is in the best position to know of the effect of
a withdrawal on its resources, its determination regarding those factors is
entitled to deference. See Carr, 740 F.2d at 345.
      The district court did not abuse its broad discretion in denying his motion
under the totality of the circumstances.     See McKnight, 570 F.3d at 646.
Accordingly, the judgment is AFFIRMED.




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