                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     February 15, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-11049


                    UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

                                versus

                    GREGORY STEVEN GONZALES,

                                             Defendant - Appellant.


          Appeal from the United States District Court
                for the Northern District of Texas
                          (4:05-CR-30-2)


Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     Having entered a conditional guilty plea to two counts of

possession of an unregistered firearm and one count of possession

of a firearm in furtherance of a drug-trafficking crime, Gregory

Gonzales was sentenced to 308 months in prison.   He challenges his

conviction and sentence.    The Government concedes reversible error

for part of the sentence.    CONVICTION AFFIRMED; SENTENCE AFFIRMED

IN PART AND VACATED IN PART; REMANDED FOR RESENTENCING.

                                  I.


     *
       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this opinion should not be published and is not precedent except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.
     In February 2005, Fort Worth, Texas, Police Officers, without

announcing their presence, executed a search warrant at Christopher

Gonzales’ home.    He was suspected of drug trafficking.            His half-

brother, appellant Gregory Gonzales (Gonzales) was also there.               As

Officers entered, they observed Christopher Gonzales diving toward

a firearm.    To prevent his gaining possession of the weapon, an

Officer struck him with a firearm, resulting in a cut on his

forehead.     The apartment was searched and Officers retrieved

numerous firearms and two pipe bombs.              Christopher Gonzales and

Gonzales were both arrested.

     Christopher       Gonzales   was    transported   to   a   hospital    for

treatment for his injuries; Gonzales, to the local Bureau of

Alcohol,    Tobacco,    Firearms,   and       Explosives   (ATF)   office   for

questioning. ATF Agents read Gonzales his Miranda rights, which he

subsequently waived. He described to ATF Agents his involvement in

a drug-trafficking scheme with Christopher Gonzales and provided a

handwritten statement.      According to Agents, at no time during the

interview did Gonzales inquire about Christopher Gonzales’ well-

being or exhibit any concern about his brother’s condition.

     In February 2005, Gonzales was indicted with Christopher

Gonzales. That May, Gonzales moved to exclude his oral and written

statements to Agents, claiming they were a product of coercion by

them:   he alleged he was traumatized after seeing Christopher

Gonzales struck; and, therefore, made the statements out of fear.


                                        -2-
      At   a   joint   suppression    hearing     on   5   May   2005   for   both

brothers, ATF Agents testified to the circumstances surrounding the

search of Christopher Gonzales’ apartment and the extent of his

injuries.      They claimed Christopher Gonzales was struck by the

Agents as he reached for a firearm.         According to Agents, after the

brothers were arrested, Christopher Gonzales was attended to by ATF

medics and was transported to the hospital for stitches; he did not

lose consciousness and was mentally alert.             Agents also testified

that, when interviewed, Gonzales:           admitted he had been to the

apartment numerous times where he helped his brother sell drugs;

was aware of the presence of firearms in the apartment; and did not

appear concerned about Christopher Gonzales’ well-being during

questioning. Neither brother testified at the suppression hearing.

      At the end of the hearing, the district court denied Gonzales’

suppression motion, finding:          the Government did not engage in

“coercion or inappropriate persuasion”, causing Gonzales to give

the statements; they were “knowingly, willingly, and voluntarily

made and were done so at a time when [Gonzales] had full possession

of his facilities and knew exactly what he was doing”.

      At his rearraignment on 13 May 2005, Gonzales pleaded guilty

to   two   counts   of   possession    of   an    unregistered     firearm,    in

violation of 26 U.S.C. § 5861(d), and one count of possession of a

firearm in furtherance of a drug-trafficking crime, in violation of

18 U.S.C. §§ 924(c)(1)(A) and (B)(i).            In doing so, he reserved the


                                      -3-
right to appeal the denial of his suppression motion.              The basis

for Gonzales’ plea was provided in a factual resume, signed by

Gonzales    on     10     May;   articulated   by   the   Government   at   his

rearraignment; and verbally agreed to then by Gonzales.                     (In

addition to his agreeing to the factual basis and his statements to

the Agents, by a 30 June 2005 letter to the prosecutor, Gonzales

admitted his crimes and expressed remorse.)

       On 26 August 2005, after acquiring new counsel, Gonzales

testified at Christopher Gonzales’ sentencing hearing. Contrary to

the above-described factual resume and his previous statements to

Agents, Gonzales claimed:             the day the police arrived at the

apartment was the first time he had been there; he had never seen

any drugs or drug paraphernalia there; the only firearm he saw was

the revolver on the bed at the time the police entered; he had lied

in his handwritten statement because the ATF Agents told him to and

he was fearful of being hit like Christopher Gonzales had been; and

he had lied under oath during the rearraignment when he stated the

factual resume was complete and true.                Accordingly, Gonzales’

Presentence Investigation Report (PSR) was amended, recommending

both    removing     an     acceptance-of-responsibility      adjustment    and

enhancing his base-offense level for obstruction of justice.

       In September 2005, Gonzales moved to withdraw his guilty plea,

contending his disavowal of his factual resume at Christopher

Gonzales’ sentencing hearing called into question whether his plea



                                        -4-
was supported by a factual basis.            He alleged he had intended to

file the motion earlier, but his first attorney had talked him out

of it.

      The district court heard arguments on the plea-withdrawal

motion   at   the   outset    of   Gonzales’    sentencing    hearing     on   14

September 2005 and found the statements contained in the factual

basis, and made by Gonzales during rearraignment, were true.                   The

district court noted Gonzales’ signed factual resume and found,

despite Gonzales’ recent recantation, there was no reasonable

question regarding his guilt.         (Christopher Gonzales testified at

the hearing and disavowed Gonzales’ involvement in any illicit

activities.)    Accordingly, the court denied Gonzales’ motion to

withdraw his guilty plea.

      At the sentencing portion of the hearing, the district court

denied Gonzales’ counsel’s attempt to make new, oral objections to

the PSR, in addition to written objections previously submitted.

Gonzales was sentenced, inter alia:            to two concurrent 188-month

sentences for the two possession-of-an-unregistered-firearm counts;

and   for   possession   of    a   firearm    in   furtherance   of   a    drug-

trafficking    crime,    to   120-months’     imprisonment,    to   be    served

consecutive to his 188-month sentences, resulting in 308-months’

imprisonment.

                                      II.




                                      -5-
     Gonzales claims the district court erred by:                   denying his

motion to suppress his statements to the ATF Agents; denying his

motion to withdraw his guilty plea; not allowing him at sentencing

to make new objections to the PSR; and sentencing him to a term of

imprisonment greater than the statutory maximum for possession of

an unregistered firearm.

                                      A.

     Concerning the motion to suppress, Gonzales maintains he was

traumatized by seeing his brother hit during the arrest; and

therefore, fearful of his well-being, he gave an involuntary

confession.     As noted, he did not testify at the suppression

hearing. Accordingly, no direct evidence supports this contention.

Instead,   to   rebut    testimony    by    witnesses   at    the   suppression

hearing,   he   relies    in   part   on    his   testimony   at    Christopher

Gonzales’ subsequent sentencing hearing.

     The standard for determining whether a confession is voluntary

is whether, under the totality of the circumstances, the statement

is a product of the accused’s “free and rational choice”.                United

States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994)

(internal citations and quotations omitted).             A district court’s

findings of fact for a suppression hearing are reviewed for clear

error; its conclusions of law, de novo.             E.g., United States v.

Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993).            A finding is clearly

erroneous only when the reviewing court is left with a “definite


                                      -6-
and firm conviction that a mistake has been committed”.           Anderson

v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).           The

evidence is reviewed in the light most favorable to the prevailing

party in district court.       Cardenas, 9 F.3d at 1147.        Of course,

deference    is     accorded   the     district    court’s     credibility

determinations.     See United States v. Restrepo, 994 F.2d 173, 183

(5th Cir. 1993) (holding that, on appeal, court must give credence

to the credibility choices and findings of fact of the district

court); United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)

(“The district court’s ruling to deny the suppression motion should

be upheld if there is any reasonable view of the evidence to

support it.”)(internal citations and quotations omitted).

       As discussed supra, during the suppression hearing, the court

heard testimony that Christopher Gonzales received a cut above his

eye and was taken to the hospital for treatment after an Officer

struck him as he dove for a firearm.       Gonzales did not indicate any

concern or inquire about his brother’s condition before, during, or

after the interview with the ATF Agents, nor does Gonzales contend

otherwise.    Accordingly, the district court determined:         Gonzales

was advised of his Miranda rights and knowingly waived them; he did

not ask to speak with an attorney; and his statement was not the

product of threats or coercion.       See Ornelas-Rodriguez, 12 F.3d at

1348   (upholding   voluntariness     of   confession   of   defendant   who

                                     -7-
witnessed co-defendant hit several times in elevator by law-

enforcement officials because confession took place several hours

after incident and defendant was not threatened for refusing to

confess).    The district court did not clearly err in finding

Gonzales’ statement voluntary.    (To the extent Gonzales seeks to

rely on his testimony at Christopher Gonzales’ sentencing hearing,

and although the district court took judicial notice of it, no

transcript of that testimony was included in the record on appeal.

In any event, such testimony could not be considered for our ruling

on the earlier decision to deny the suppression motion, especially

in the light of the court’s having then heard testimony.)

                                 B.

     Concerning the district court’s denying his motion to withdraw

his guilty plea, Gonzales contends:         because he repudiated the

factual resume, the plea does not have a factual basis on which to

stand; and the district court incorrectly applied the below-

described Carr factors.   A district court may permit withdrawal of

a guilty plea before a defendant is sentenced if the defendant

shows “any fair and just reason”.      FED. R. CRIM. P. 11(d)(2)(B).   On

the other hand, there is no absolute right to withdraw a guilty

plea.   United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).

The denial of a motion to withdraw a guilty plea is reviewed for

abuse of discretion.   Id.

                                 1.


                                 -8-
     In deciding whether denial of the withdrawal motion was an

abuse of discretion, this court, under United States v. Carr, 740

F.2d 339, 343-44 (5th Cir. 1984), “traditionally considers seven

relevant factors: (1) whether the defendant asserted his innocence,

(2) whether withdrawal would prejudice the government, (3) whether

the defendant delayed in filing the withdrawal motion, (4) whether

withdrawal would inconvenience the court, (5) whether adequate

assistance of counsel was available, (6) whether the plea was

knowing and voluntary, and (7) whether withdrawal would waste

judicial resources”.        Grant, 117 F.3d at 789.       No single factor

mandates   a   particular     result;    instead,   the   court    makes    its

determination based on the totality of the circumstances.                United

States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).

     Regarding the Carr factors, the district court thoroughly

examined whether the plea was made knowingly and voluntarily.               The

court noted:    it went over the elements of each of the offenses

with Gonzales at his rearraignment and was told by him that each

was present in the case; Gonzales signed the factual resume,

attesting the factual basis for the plea was true and correct; it

carefully “interrogated” Gonzales to determine whether the plea was

made voluntarily; and the factual resume was read aloud, and

Gonzales   assured    the   court   it   was   correct.    Gonzales’       open

pronouncement    in   court    carried    special   weight;   it    is     well

established that “[s]olemn declarations in open court carry a


                                    -9-
strong presumption of verity”. Blackledge v. Allison, 431 U.S. 63,

74 (1977).   The district court found “no reasonable question that

can be raised at this time concerning [Gonzales’] guilt”.    It also

noted:   Gonzales had been represented by competent counsel, a

finding not contested by Gonzales; and a trial would waste judicial

resources.

     The court adequately reviewed the Carr factors.        Gonzales

fails to show an abuse of discretion.   See Badger, 925 F.2d at 104.

                                2.

     Along this line, Gonzales’ claim that his repudiation of the

factual resume invalidates his plea because it now has no factual

basis on which to stand is without merit.    The district court, as

a finder of fact, determined the initial guilty plea was credible,

after hearing the testimony and observing Gonzales’ demeanor.    See

Carr, 740 F.3d at 345; see also United States v. Pologruto, 914

F.2d 67, 70 (5th Cir. 1990) (“Credibility choices lie within the

province of the trier-of-fact.”)

                                C.

     Gonzales next contests the district court’s refusing,    at the

sentencing hearing, to allow his oral (new) objections to the

amended PSR.   As discussed supra, the PSR had been amended after

Gonzales’ recantation at his brother’s sentencing.

     Because Gonzales’ new objections were outside Federal Rule of

Criminal Procedure 32(f)(1)’s 14-day window, they were untimely.


                               -10-
Under   Rule     32(i)(l)(D),       the    district         court   has    discretionary

authority to entertain untimely objections to the PSR “for good

cause”. Not permitting such untimely objections is reviewed for an

abuse of discretion.          United States v. Chung, 261 F.3d 536, 538

(5th Cir. 2001).

     Though Gonzeles’ counsel did not specify his new objections at

the sentencing hearing, he stated they centered around Gonzales’

repudiation of facts contained in the factual resume.                            (Nor does

Gonzales detail his desired objections in his brief on appeal.)

Gonzales’ objections to the PSR’s factual basis had been already

examined by the district court at the sentencing hearing when it

heard arguments on the guilty-plea-withdrawal motion; at that time,

the court ruled Gonzales’ new version of events was not credible.

Because    the    district      court          throughly      covered      these     issues

previously, it did not abuse its discretion in denying the new,

oral objections to the PSR.

                                               D.

     Finally,      Gonzales     contends            the    district      court   erred   by

sentencing     him   to   a   term        of    imprisonment        greater      than    the

statutory-maximum ten-year term for possession of an unregistered

firearm.   The legality of a criminal sentence is reviewed de novo.

United States v. Ortlieb, 274 F.3d 871, 879 (5th Cir. 2001).

Because Gonzales      did     not    raise          this   issue    in    district    court

however, we review only for plain error.                      FED. R. CRIM. P. 52(b).


                                           -11-
Under plain-error review, Gonzales must show a clear or obvious

error affected his substantial rights.                    E.g., United States v.

Castillo,   386   F.3d   632,       636    (5th    Cir.    2004).         “If   [these]

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if ... the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”        United States v. Cotton, 535 U.S. 625, 631

(2002) (internal citations and quotations omitted).

     Possession of an unregistered firearm carries a statutory-

maximum sentence of ten-years’ imprisonment.                   26 U.S.C. § 5871.

(“Any person who [is convicted of possessing an unregistered

firearm] ... shall, upon conviction, ... be imprisoned not more

than ten years”).     The district court, however, sentenced Gonzales

to concurrent terms of 188 months for the two unregistered-firearm

counts.

     As   the   Government     states,       a    sentence    which       exceeds   the

statutory   maximum      is    an    illegal       sentence,        its    imposition

constituting reversible plain error and mandating vacatur and

resentencing.     Accordingly, the sentences as to counts one and two

are vacated and this matter remanded for resentencing on those

counts.

                                          III.

     For the foregoing reasons, Gonzales’ conviction is AFFIRMED;

the sentence as to count three, concerning § 924(c), is AFFIRMED,


                                          -12-
and, as to counts one and two, VACATED; and this matter is REMANDED

for resentencing consistent with this opinion.

              CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART AND
                     VACATED IN PART; REMANDED FOR RESENTENCING




                               -13-
