     Case: 15-10318      Document: 00513368218         Page: 1    Date Filed: 02/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10318
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 3, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BENNY DENNIS, also known as Bennie Dennis,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 7:14-CR-11-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Benny Dennis pleaded guilty pursuant to a written plea agreement to
one count of distributing and possessing with intent to distribute five grams or
more of methamphetamine under 21 U.S.C. § 841(a)(1) and (b)(1)(B).                                In
exchange for the plea, the Government agreed to dismiss a charge under 18
U.S.C. § 922(g) of possessing a firearm after having been convicted of a felony.
Dennis sought to withdraw his guilty plea after the probation officer released


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10318

the Presentence Report. Dennis argued that his attorney gave him incorrect
advice about his likely sentence. The Government opposed his request, and
the district court denied the motion. Dennis re-urged his withdrawal request
before the court imposed his sentence.         Nevertheless, the district court
sentenced Dennis to 480 months of imprisonment and entered a criminal
judgment against him. The district court also dismissed the firearm charge on
the Government’s motion.
      On appeal, Dennis argues that the district court abused its discretion in
denying his request to withdraw his guilty plea. We review a district court’s
denial of a defendant’s request to withdraw his guilty plea for abuse of
discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). After
a district court accepts a guilty plea “but before it imposes sentence,” the court
may allow withdrawal of the plea if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When
applying this standard, courts consider seven factors: (1) whether the
defendant asserted his innocence, (2) whether withdrawal would cause the
government to suffer prejudice, (3) whether the defendant delayed in filing the
motion, (4) whether withdrawal would substantially inconvenience the court,
(5) whether close assistance of counsel was available, (6) whether the original
plea was knowing and voluntary, and (7) whether withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
      When denying Dennis’s request to withdraw his guilty plea, the district
court addressed each of the Carr factors and concluded that the totality of the
circumstances weighed in favor of the Government.            The district court
emphasized that Dennis had acknowledged his guilt during his arraignment
and later merely asserted his innocence without providing a substantial
showing. See United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009).



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                                  No. 15-10318

The district court also noted that Dennis had the close assistance of counsel
when he pleaded guilty, was thoroughly questioned during his plea colloquy,
and filed his withdraw request nearly three months after his guilty plea. See
Carr, 740 F.2d at 345 (motion filed twenty-two days after guilty plea was “not
promptly filed”). Given the district court’s consideration of each of the Carr
factors, we conclude that the district court did not abuse its broad discretion in
denying Dennis’s request to withdraw his guilty plea. See id. at 343–44.
      AFFIRMED.




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