     Case: 10-20754     Document: 00511665917         Page: 1     Date Filed: 11/15/2011




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

                                                                             FILED
                                                                        November 15, 2011
                                     No. 10-20754
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN PALMER,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-205-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        John Palmer pleaded guilty to all four counts of his indictment: two counts
of assault against a federal agent (Counts 1 and 2) and two counts of threatening
a federal official (Counts 3 and 4). Nearly three months after his guilty plea was
entered and less than a week before his scheduled sentencing hearing, Palmer
filed a motion to withdraw his guilty plea as to Counts 1 and 2. The Government



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20754

opposed the motion, and it was denied by the district court. Palmer contends
that the district court abused its discretion in denying the motion.
      After a district court has accepted a guilty plea, it may grant a motion to
withdraw the plea before the defendant is sentenced if the defendant shows “a
fair and just reason for requesting the withdrawal.”1 In determining whether
the defendant has met this burden, we consider whether (1) the defendant
asserted his innocence, (2) withdrawal would prejudice the government, (3) the
defendant delayed in filing the withdrawal motion, (4) withdrawal would
inconvenience the court, (5) close assistance of counsel was available to the
defendant, (6) the plea was knowing and voluntary, and (7) withdrawal would
waste judicial resources.2 The totality of the circumstances is considered when
applying these factors, and “[n]o single factor or combination of factors mandates
a particular result.”3 The district court’s denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion.4
      With regard to the first Carr factor, Palmer admits that he “did not assert
his innocence to the charges.”5 Palmer also explicitly concedes that the third,
fifth, and sixth Carr factors weigh against him but contends that the second
factor weighs in his favor while the fourth and seventh factors are neutral. Even
if the Government would not be prejudiced by the withdrawal of Palmer’s guilty
pleas for Counts 1 and 2, reversal of the district court is not justified merely
based on lack of prejudice to the Government.6 Based on our review of all the



      1
          FED. R. CRIM. P. 11(d)(2)(B).
      2
          United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
      3
          United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      4
          Id. at 103.
      5
          Appellant’s Br. at 9.
      6
          See Carr, 740 F.2d at 345.

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   Case: 10-20754   Document: 00511665917      Page: 3   Date Filed: 11/15/2011

                                  No. 10-20754

Carr factors under the totality of the circumstances, Palmer has failed to show
that the district court’s denial of his motion constituted an abuse of discretion.
      AFFIRMED.




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