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

                                                                            FILED
                                                                           April 22, 2008
                                     No. 07-40496
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ANTONIO VILLANUEVA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:06-CR-804-1


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Antonio Villanueva appeals his guilty-plea conviction for transporting, in
the tractor of the tractor-trailer he was driving, illegal aliens, in violation of 8
U.S.C. § 1324.
       First, he maintains he did not knowingly and voluntarily waive the right
to appeal his conviction and sentence, maintaining, as discussed below, that his
guilty plea was not knowing and voluntary. The Government seeks to enforce
waiver.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40496

      The plea agreement provided Villanueva waived his right to appeal his
conviction and sentence, except that he reserved the right to appeal a sentence
imposed above the statutory maximum or an upward departure from the
Sentencing Guidelines. At rearraignment, the district court advised Villanueva
that he was waiving his right to appeal under the plea agreement except for the
above exceptions, and Villanueva stated that he understood.           The record
indicates: Villanueva knowingly and voluntarily waived his right to appeal,
inter alia, his conviction; and that, unless the guilty plea was not knowing and
voluntary, the waiver is valid and enforceable. See United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005).
      Next, as noted, Villanueva contends his guilty plea was unknowing and
involuntary because he did not understand the nature of the offense or know
aliens were hidden in the vehicle. Even if there is a valid appeal waiver, we can
review whether there is a sufficient factual basis to support a defendant’s guilty
plea. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The factual
basis summarized by the Government at the rearraignment was sufficient to
establish Villanueva: transported aliens within the United States with the
intent to further their unlawful presence in the United States; and knew the
aliens were in the country unlawfully. See United States v. Nolasco-Rosas, 286
F.3d 762, 765 (5th Cir. 2002). Therefore, the district court did not err in finding
the factual basis supported Villanueva’s guilty plea. See United States v. Marek,
238 F.3d 310, 315 (5th Cir. 2001) (en banc).
      Finally, Villanueva maintains the district court abused its discretion in
denying his motion to withdraw his guilty plea. After conducting an evidentiary
hearing, the district court considered the seven factors provided in United States
v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The court determined: (1)
Villanueva asserted his innocence but his testimony was not credible; (2) the
Government would be prejudiced if the motion were granted, because the
material witnesses had been released and were no longer available; (3)

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                                 No. 07-40496

Villanueva filed his motion 68 days after he pleaded guilty; (4) his guilty plea
was knowing and voluntary; and (5) he had assistance of counsel throughout the
proceedings. The district court stated it did not put much emphasis on the other
two Carr factors: whether the withdrawal of the motion would inconvenience
the court or waste judicial resources. Villanueva has not shown the district
court failed to consider any of the Carr factors, or abused its discretion in
denying his motion. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003).
      AFFIRMED.




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