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

                                                                    FILED
                                                                  December 2, 2008
                                No. 08-10122
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

v.

ALPHA TREATMENT CENTERS, INC., doing business as, Texas Durable
Medical Equipment,

                                            Defendant–Appellant.


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CR-202-3


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Alpha Treatment Centers, Inc. (Alpha), pleaded guilty to conspiracy to
commit mail fraud and health-care fraud. Alpha’s plea was based in large part
on the guilty plea of its employee Jason White to that same charge. At one point,
White repudiated his admissions of guilt and moved to withdraw his own guilty
plea. He later reaffirmed his guilt and the validity of his plea, however, and was
convicted. Based on White’s repudiation of his admissions of guilt, Alpha moved


      *
      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should not be published and is not precedent except under the limited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. 08-10122

to withdraw its plea. The district court denied Alpha’s motion and sentenced
Alpha to a one-year probated sentence and $100,000 in restitution.
      In its sole issue on appeal, Alpha argues that the district court abused its
discretion in denying Alpha’s motion to withdraw its guilty plea.           Alpha
maintains that White lied under oath when he admitted guilt and that White
was truthful when he repudiated his admissions of guilt. Alpha reasons that
absent White’s guilt, there was no factual basis for its guilty plea.
      Because the district court had already accepted Alpha’s plea, to prevail on
its motion, Alpha bore the burden of establishing a fair and just reason for the
withdrawal of its plea. See FED. R. CRIM. P. 11(d)(2)(B). The essence of Alpha’s
arguments is that White’s repudiation of the facts supporting his plea
demonstrated White’s innocence and that White’s guilt could thus not be
imputed to Alpha. In light of White’s innocence, Alpha reasons, there was no
factual basis to support Alpha’s plea. An assertion of innocence is one of the
factors the district court considers when determining whether a defendant has
shown a fair and just reason for withdrawing its plea. United States v. Carr, 740
F.2d 339, 343-44 (5th Cir. 1984).
      The district court held a hearing on Alpha’s motion to reconsider the
denial of its motion to withdraw its guilty plea. The district court took evidence
on the issue whether White had been truthful when pleading guilty or whether
he had been truthful when he repudiated his guilty plea in statements made
outside of court. The district court ultimately found that Alpha had not shown
that White was being untruthful when White swore under oath that he was
guilty and the factual resume submitted in support of his guilty plea was true
and correct. On the record before us, we will not disturb that factual finding.
See United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997). Thus, Alpha’s
assertion of innocence as a justification for withdrawing its plea fails. Carr sets
forth several other factors to be considered. Carr, 740 F.2d at 344. In this case,
however, we need not consider them because all of Alpha’s arguments regarding

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                                 No. 08-10122

the other factors are based on the faulty premise that White, and thus Alpha,
were innocent and that their pleas were invalid.
      White’s factual resume stipulated to all of the elements of the offense.
Thus, the factual resume alone was sufficient to provide a factual basis for his
guilty plea as well as Alpha’s own derivative plea. See United States v. Dukes,
139 F.3d 469, 475 (5th Cir. 1998). Accordingly, because Alpha failed to show a
fair and just reason for the withdrawal of its plea, the district court did not
abuse its discretion in denying Alpha’s motion to withdraw its plea. See FED. R.
CRIM. P. 11(d)(2)(B); Carr, 740 F.2d at 344. The judgment of the district court
is AFFIRMED.




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