     Case: 13-10510      Document: 00512636735         Page: 1    Date Filed: 05/20/2014




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

                                    No. 13-10510                                 FILED
                                  Summary Calendar                           May 20, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS GABRIEL MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-230-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jesus Gabriel Martinez appeals following his guilty plea to being an
alien illegally present in the United States after having been deported. He
argues that the district court abused its discretion in denying his motion to
withdraw his guilty plea. Martinez submitted the motion to withdraw his plea
prior to sentencing but after the district court accepted the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10510    Document: 00512636735      Page: 2   Date Filed: 05/20/2014


                                 No. 13-10510

      There is no absolute right to withdraw a guilty plea. United States v.
Grant, 117 F.3d 788, 789 (5th Cir. 1997). Under Federal Rule of Criminal
Procedure 11(d)(2)(B), withdrawal of a guilty plea may be permitted after
acceptance of the plea but before sentencing if a defendant meets his burden of
showing a “fair and just reason for requesting the withdrawal.” United States
v. Puckett, 505 F.3d 377, 382 (5th Cir. 2007).
      The denial of a motion to withdraw a guilty plea is reviewed for an abuse
of discretion. United States v. Urias-Marufo, 744 F.3d 361, 364 (5th Cir. 2014).
In determining whether a district court has abused its discretion in denying
withdrawal, this court traditionally employs the seven factor test set out in
United States v. Carr, 740 F.2d 339 (5th Cir. 1984), considering whether or not
(1) the defendant has asserted his innocence; (2) the Government would suffer
prejudice if the motion were granted; (3) the defendant has delayed in filing
his motion; (4) the withdrawal would substantially inconvenience the court;
(5) the defendant received the close assistance of counsel; (6) the original plea
was knowing and voluntary; and (7) the withdrawal would waste judicial
resources. Urias-Marufo, 744 F.3d at 364. These factors are not exclusive,
and, ultimately, this court makes its determination based on the totality of the
circumstances. Id.
      “[A] defendant cannot fail to invoke any of the Carr factors in support of
his motion and then argue that the district court abused its discretion by
failing to consider arguments that he had the burden to raise.” United States
v. Washington, 480 F.3d 309, 317 (5th Cir. 2007) (internal quotation marks and
citation omitted). Martinez raised only the innocence factor in support of his
motion to withdraw his guilty plea. However, we note that several of the Carr
factors that were not raised in the district court also support affirmance of the
court’s ruling.



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                                 No. 13-10510

      Martinez’s assertion of “innocence” consisted solely of his contention that
the underlying deportation proceedings were possibly either technically invalid
or procedurally flawed. Neither he nor his counsel offered a concrete basis
upon which the district court could have concluded that Martinez could have
successfully collaterally attacked the prior order of removal. See United States
v. Mendoza-Mata, 322 F.3d 829, 832-34 (5th Cir. 2003) (noting that where an
illegal reentry defendant seeks to withdraw a guilty plea in order to pursue a
collateral attack on the underlying deportation order, he must show a
reasonable likelihood that he would have been granted such relief). Nor does
Martinez offer such a basis on appeal. Because he has offered nothing more
than mere speculation that he might have obtained relief from the prior
deportation order, Martinez’s assertion of innocence does not show that the
district court abused its discretion by denying the motion to withdraw the plea.
See Urias-Marufo, 744 F.3d at 364; Mendoza-Mata, 322 F.3d at 834.
      As to the remaining Carr factors, we note that the Government urged
the district court not to allow Martinez to withdraw his plea and to proceed
with sentencing. We also note that Martinez delayed in filing his motion until
after the preparation of the presentence report, which expended judicial
resources.   Martinez does not challenge the integrity of the guilty plea
proceedings, and he acknowledges that he was represented by counsel before
and after the plea. See Urias-Marufo, 744 F.3d at 364. Finally, we reject
Martinez’s newly raised assertion that the district court applied an incorrect
analysis in evaluating his motion. Martinez has not demonstrated error, plain
or otherwise, in the district court’s methodology.        See United States v.
Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008); Washington, 480 F.3d at
317; United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      AFFIRMED.



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