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

                                                               FILED
                                                               May 13, 2008
                               No. 07-50491
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

RODOLFO OCHOA-CANO

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                         USDC No. 3:06-CR-1153-2


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
     Rodolfo Ochoa-Cano pleaded guilty, without a written plea agreement, to
a four-count indictment charging him with conspiracy to import five kilograms
or more of cocaine, importing five kilograms or more of cocaine, conspiracy to
possess with intent to distribute five kilograms or more of cocaine, and
possessing with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841, 846, 952(a), 960(a)(1) and (b)(1)(B), and 963.
Ochoa-Cano was held responsible for 14.90 kilograms of cocaine found in 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should not be published and is not precedent except under the limited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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concealed compartment in the dashboard of his van during an inspection at the
Bridge of Americas Port of Entry in El Paso, Texas. Ochoa-Cano was sentenced
to 120 months of imprisonment and a five-year term of supervised release.
      He argues on appeal that the district court erred in denying his motions
to withdraw his guilty plea. For the first time on appeal, Ochoa-Cano argues
that following the 2002 amendment of the Federal Rules of Criminal Procedure,
Rule 11(d)(2) no longer allows a district court any discretion in determining
whether to permit the withdrawal of a guilty plea as long as the defendant can
show a fair and just reason for requesting the withdrawal. Ochoa-Cano fails to
cite to any caselaw in support of his argument, however. Moreover, neither this
circuit’s precedent nor the language of Rule 11 supports his assertion. United
States v. McElhaney, 469 F.3d 382, 385 (5th Cir. 2007); see also FED. R. CRIM.
P. 11(d)(2)), Advisory Committee Notes. Consequently, Ochoa-Cano has failed
to demonstrate plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 731–34 (1993)).
      Ochoa-Cano also argues, as he did in the district court, that he asserted
his innocence and has provided “fair and just” reasons in support of his motions
to withdraw his guilty plea. Ochoa-Cano contends that an assertion made by his
own sisters regarding an alleged statement by an investigating officer provides
a “fair and just” reason for the withdrawal of his guilty plea. According to the
sisters, an investigating officer told them that although the facts made Ochoa-
Cano look guilty, he did not think Ochoa-Cano was guilty. Ochoa-Cano also
contends that an affidavit from his co-defendant’s cellmate also constitutes a
“fair and just” reason for the withdrawal of his plea. The inmate attests that the
co-defendant admitted that he lied to the Government about Ochoa-Cano’s
knowledge of the existence of the cocaine found in the van.
      “There is no absolute right to withdraw a guilty plea, and the defendant
bears the burden to establish a ‘fair and just reason’ for withdrawal.” See United
States v. Puckett, 505 F.3d 377, 382 (5th Cir. 2007), petition for cert. filed (Mar.

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3, 2008) (No. 07-9712); FED. R. CRIM. P. 11(d)(2). A district court’s denial of a
motion to withdraw a guilty plea is reviewed for abuse of discretion. See Puckett,
505 F.3d at 382 (citing United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003)). A district court abuses its discretion if it bases its decision on an error
of law or a clearly erroneous assessment of the evidence. See United States v.
Mann, 161 F.3d 840, 860 (5th Cir. 1998).
      In evaluating the denial of a motion to withdraw a guilty plea under Rule
11(d), this court continues to consider whether: (1) the defendant has asserted
his innocence; (2) withdrawal would prejudice the Government; (3) the defendant
has delayed in filing his withdrawal motion; (4) withdrawal would substantially
inconvenience the court; (5) close assistance of counsel was available; (6) the
original plea was knowing and voluntary; and (7) withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
      The district court conducted a thorough examination of Ochoa-Cano during
the plea hearing. The district court repeatedly told Ochoa-Cano that he did not
have to enter a plea of guilty and should not enter a plea of guilty if he believed
he was innocent of the charges. Nevertheless, he admitted under oath that he
was the owner of, and passenger in, the van in which drugs were being
transported; he knew that drugs were in the van; and he knew that the drugs
were going to be delivered to someone else once he crossed the United States
border.    The record demonstrates that his guilty plea was knowingly and
voluntarily made. The record further demonstrates he had close assistance of
counsel.
      This court has previously noted that it “need not parse each Carr factor
but can instead look to the totality of the circumstances” to determine whether
the district court abused its discretion in denying a motion to withdraw a guilty
plea. See United States v. McElhaney, 469 F.3d 382, 385 (5th Cir. 2007). Under
the circumstances, Ochoa-Cano has not shown that the district court abused its



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discretion in denying his motions to withdraw his guilty plea. Accordingly, the
judgment of the district court is AFFIRMED.




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