     Case: 19-40424       Document: 00515414491         Page: 1    Date Filed: 05/13/2020




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

                                    No. 19-40424
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          May 13, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff−Appellee,

versus

JOSE DE JESUS LIZARRARAS-CHACON,

                                                  Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:18-CR-310-1




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       Jose Lizarraras-Chacon appeals his conviction of illegal reentry, main-



       *Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 CIRCUIT RULE 47.5.4.
    Case: 19-40424     Document: 00515414491        Page: 2   Date Filed: 05/13/2020


                                     No. 19-40424

taining that the district court abused its discretion in denying his motion to
withdraw his guilty plea. “[A] district court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the evidence.”
United States v. Lord, 915 F.3d 1009, 1013−14 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 140 S. Ct. 320 (2019). In evaluating
the denial of a motion to withdraw a plea, we consider the totality of circum-
stances, including the seven factors enumerated in United States v. Carr,
740 F.2d 339, 343−44 (5th Cir. 1984). “[N]o single factor or combination of
factors mandates a particular result, and [the defendant] bears the burden of
establishing a fair and just reason for withdrawal of his plea.” United States
v. Still, 102 F.3d 118, 125 (5th Cir. 1996).

      Lizarraras-Chacon’s motion to withdraw was based on Pereira v. Ses-
sions, 138 S. Ct. 2105, 2109−10 (2018), which held that a notice to appear
(“NTA”) that fails to designate a time and place of hearing does not trigger the
stop-time rule for cancellation of removal, and on district court rulings that,
relying on Pereira, dismissed illegal-reentry indictments based on invalid
NTAs. Lizarraras-Chacon acknowledges that United States v. Pedroza-Rocha,
933 F.3d 490 (5th Cir.), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588),
forecloses his argument based on Pereira and that he is raising the issue only
to preserve it for further review.

      Accordingly, irrespective of the Carr factors, Lizarraras-Chacon cannot
show that the district court abused its discretion in determining that he failed
to carry his burden of providing a fair and just reason for withdrawal of his
plea. See Lord, 915 F.3d at 1013−14; Still, 102 F.3d at 125. The judgment is
AFFIRMED.




                                          2
