     Case: 12-41422      Document: 00512442898         Page: 1    Date Filed: 11/15/2013




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

                                                                                      FILED
                                    No. 12-41422                              November 15, 2013
                                  Summary Calendar
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROCKY LEE MARQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-2506-2


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Rocky Lee Marquez appeals his guilty plea conviction of conspiracy to
possess with intent to distribute methamphetamine.                  In pleading guilty,
Marquez admitted that he knowingly accompanied Vanessa Marie Naranjo
and waited while she attempted to transport illegal drugs from Mexico into the
United States over the pedestrian bridge at the border crossing at Laredo,
Texas.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41422

                   Adequacy of Factual Basis for Guilty Plea
      Marquez contends that his guilty plea was not supported by a sufficient
factual basis. We review this contention for plain error. See United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Marquez must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      We must first determine whether the district court committed a clear or
obvious error in accepting Marquez’s plea based on the factual record before it.
See Broussard, 669 F.3d at 546; see also FED. R. CRIM. P. 11(b)(3). This inquiry
involves a comparison of the conduct admitted by Marquez and the elements
of the offense charged in the indictment. Broussard, 669 F.3d at 546. “‘In
assessing factual sufficiency under the plain error standard, we may look
beyond those facts admitted by [Marquez] during the plea colloquy and scan
the entire record for facts supporting his conviction,’ and draw any fair
inferences from the evidence.” Id. (quoting United States v. Trejo, 610 F.3d
308, 313, 317 (5th Cir. 2010)); see also United States v. Booker, 334 F.3d 406,
409 (5th Cir. 2003) (discussing elements of drug conspiracy); 21 U.S.C. § 846.
      Marquez does not dispute that the record reflects that he knew Naranjo
was transporting illegal drugs from Mexico to the United States. Rather he
contends on appeal, as he did in the district court, that he did not know the
type of drugs she was transporting.
      “[T]o obtain a conviction under the knowledge element of section 846, the
government is only required to show that the defendant knew that the
substance was a controlled substance.” United States v. Patino-Prado, 533
F.3d 304, 311-12 (5 Cir. 2008) (internal quotation marks and citation omitted));



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                                   No. 12-41422

see also United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009) (same
as to 21 U.S.C. § 841(a)).
      The post-arrest statements provided by Marquez and Naranjo and the
circumstances of Marquez’s arrest provided facts from which it could be
inferred that Marquez was a voluntary participant in the drug conspiracy. See
United States v. Brown, 727 F.3d 329, 339 (5th Cir. 2013). In light of facts
presented at the rearraignment and reported in the presentence report, the
district court did not commit a clear and obvious error in accepting Marquez’s
guilty plea, as the record reflects that Marquez knowingly and voluntarily
participated in an agreement with Naranjo and others to violate the narcotics
laws. See id.; Broussard, 669 F.3d at 546.
                    Denial of Motion to Withdraw Guilty Plea
      Marquez contends that the district court erred in denying his motion to
withdraw his guilty plea. “A defendant may withdraw a plea of guilty . . .
(2) after the court accepts the plea, but before it imposes sentence if: . . . (B) the
defendant can show a fair and just reason for requesting the withdrawal.” FED.
R. CRIM. P. 11(d). Seven factors are considered: (1) whether the defendant has
asserted his innocence; (2) whether withdrawal would prejudice the
Government; (3) whether the defendant has delayed in filing his withdrawal
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. Carr, 740 F.2d at 343-44. “[T]he burden of establishing a
fair and just reason for withdrawing a guilty plea rests with the defendant.”
United States v. Brewster, 137 F.3d 853, 857-58 (5th Cir. 1998). The district
court should base its decision on the totality of circumstances. United States
v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). A district court’s order denying



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                                  No. 12-41422

a defendant’s motion to withdraw his guilty plea is reviewed by this court for
an abuse of discretion. Id. “[A] district court abuses its discretion in denying
a defendant’s motion to withdraw a guilty plea only if the court bases its
decision on an error of law or a clearly erroneous assessment of the evidence.”
Id. at 648-49.
      Marquez contends that he “asserted his innocence throughout the plea
colloquy,” in his motion to withdraw his plea, and at sentencing.            This
contention is not supported by the record. Marquez’s equivocations during the
plea colloquy related only to his refusal to admit that he knew the type of drugs
that were being transported by Naranjo. Marquez’s lack of knowledge of the
type of drugs being transported was not a fact that was material to his guilt.
See Patino-Prado, 533 F.3d at 311-12; Betancourt, 586 F.3d at 308-09.
Marquez admitted at the rearraignment that he knew that Naranjo was
transporting drugs. Because Marquez’s solemn declarations in open court
carry a strong presumption of verity, which has not been rebutted, the district
court did not abuse its discretion in disregarding his assertion of innocence.
See McKnight, 570 F.3d at 649.
      Marquez next contends that the district court found that the
Government would be prejudiced by permitting him to withdraw his plea and
that the court identified no waste of judicial resources and no substantial
inconvenience to the court. The district court did not find that the Government
would not be prejudiced. Rather, it noted that the absence of prejudice does
not necessarily justify granting a withdrawal motion. “Even if Defendant’s
trial would be brief,” the court observed, “such does not necessitate a finding of
no inconvenience to the Court.” The court stated that this was especially true
when the presentence report had already been prepared. The court stated that
Marquez had made no showing that withdrawal would not waste judicial



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                                  No. 12-41422

resources.   See Brewster, 137 F.3d at 857-58 (defendant bears burden of
establishing Carr factors). Marquez has not shown that the district court
abused its discretion in applying these factors. See McKnight, 570 F.3d at 645,
649-50.
      Marquez contends that he did not receive close assistance of counsel.
After the original arraignment, he asserts, counsel did not visit with him until
the date of his guilty plea. Marquez contends that his plea was involuntary
because of counsel’s inactions. He asserts that the plea colloquy shows that he
was not ready to enter his plea. These contentions find no support in the
record.
      Prior to accepting his plea, the magistrate judge interrogated Marquez
at length to ensure that he did not want to go to trial. The district court found,
based on counsel’s credible testimony, that counsel met with Marquez at least
four times prior to the plea, that counsel made several filings on Marquez’s
behalf, discussed the case with the prosecutor, the case agent, and Naranjo’s
counsel, and negotiated a plea agreement. Marquez has not shown that the
district court abused its discretion in weighing this factor against him. See
McKnight, 570 F.3d at 645, 649-50.
      Finally, Marquez concedes that he delayed in filing his motion to
withdraw but he contends that “his inaction seems to stem from his
relationship with” his original counsel.     The record reflect, however, that
Marquez never asked counsel to seek withdrawal of his guilty plea.
      Marquez has not shown that the district court abused its discretion in
weighing the Carr factors. See McKnight, 570 F.3d at 645. The judgment is
      AFFIRMED.




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