     Case: 14-50654      Document: 00512955186         Page: 1    Date Filed: 03/03/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-50654                                FILED
                                  Summary Calendar                          March 3, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELIAS A. ESTRELLA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:13-CR-222-2


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Elias A. Estrella pleaded guilty pursuant to a plea agreement to one
count of possession with intent to distribute five kilograms or more of cocaine
and was sentenced to 240 months of imprisonment and 10 years of supervised
release. The appeal waiver provision in Estrella’s plea agreement does not bar
this appeal because the Government has not sought to enforce it. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50654    Document: 00512955186     Page: 2   Date Filed: 03/03/2015


                                 No. 14-50654

      Estrella argues that the district court abused its discretion in denying
his motion to withdraw his guilty plea. He cites his repeated claims of actual
innocence; the failure of the Government to substantiate its claim of prejudice
resulting from a withdrawal of the plea; the district court’s erroneous reliance
on a busy docket when finding that a withdrawal would inconvenience the
court and waste judicial resources; and ineffective assistance of counsel which
contributed to an unknowing and involuntary plea.
      Once the district court accepts a defendant’s guilty plea, the defendant
has no absolute right to withdraw his guilty plea. United States v. Grant, 117
F.3d 788, 789 (5th Cir. 1997). A district court may grant a motion to withdraw
a guilty plea upon a showing of “a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). This court reviews the district
court’s denial of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Urias-Marrufo, 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, 343-344 (5th Cir. 1984), considering
whether (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. These factors are not exclusive,
and, ultimately, this court makes its determination based on the totality of the
circumstances. Id. at 344.
      The district court did not abuse its discretion in denying Estrella’s
motion to withdraw his guilty plea. Estrella’s assertion of innocence, without



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                                  No. 14-50654

identification of any specific evidence to substantiate his claim, was
insufficient to demonstrate that the district court erred in denying his motion
to withdraw his guilty plea. See United States v. Clark, 931 F.2d 292, 294-95
(5th Cir. 1991).     In addition, the district court correctly determined that
Estrella delayed in filing his motion to withdraw his guilty plea given that he
waited two months after his rearraignment and he followed with two
subsequent withdrawals and filings of the same motion. See United States v.
London, 568 F.3d 553, 563-64 (5th Cir. 2009); Carr, 740 F.2d at 345.
      Although Estrella contends that the passage of time has not impeded the
Government’s ability to bring him to trial, “the absence of prejudice to the
Government does not necessarily justify reversing the district court’s decision”
to deny a motion to withdraw a guilty plea. United States v. McKnight, 570
F.3d 641, 649 (5th Cir. 2009). In light of its extremely busy docket, the district
court correctly determined that granting Estrella’s motion to withdraw would
inconvenience the district court and waste judicial resources. See McKnight,
570 F.3d at 650. The district court also did not err when it found that Estrella
had close assistance of several attorneys during the pendency of his criminal
case. Finally, his statements at the rearraignment hearing show that he
entered a knowing and voluntary plea. Estrella’s declarations are entitled to
a strong presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 74
(1977).
      Based on the totality of the Carr factors, the district court did not abuse
its discretion when it denied Estrella’s motion to withdraw his guilty plea. See
Urias-Marrufo, 744 F.3d at 364.
      AFFIRMED.




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