     Case: 18-10654      Document: 00514902757         Page: 1    Date Filed: 04/04/2019




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


                                    No. 18-10654
                                                                                  FILED
                                                                               April 4, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NOEL GUEST,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:16-CR-301-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Noel Guest appeals his guilty-plea conviction and
240-month sentence for transporting and shipping child pornography. He
maintains that the district court abused its discretion in denying his motion to
withdraw the guilty plea. He contends that the relevant factors supported
granting his motion, arguing that he desired to reenter his guilty plea without
a plea agreement so as to retain his appellate rights.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10654

      We review a district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion, considering the factors articulated in United States v.
Carr, 740 F.2d 339, 344 (5th Cir. 1984). United States v. McKnight, 570 F.3d
641, 645 (5th Cir. 2009). The defendant has the burden of establishing a fair
and just reason for such withdrawal. United States v. Badger, 925 F.2d 101,
104 (5th Cir. 1991). In considering the motion, we consider the totality of the
circumstances, including seven factors that we address in turn. See Carr, 740
F.2d at 343-44.
      Guest acknowledges he never asserted that he is innocent of the offense.
See id. at 343-44. The factor of timeliness weighs against Guest because he
did not file a motion to withdraw the plea until more than one year after the
district court’s acceptance of his guilty plea. See id. at 344. Even if the court
had considered the date on which Guest obtained new counsel in May, that
happened nearly six months after his guilty plea was accepted. See United
States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994).
      Guest also had close assistance of counsel. See McKnight, 570 F.3d at
646-48 (finding close assistance even though it was unclear whether counsel
had given all relevant information to the defendant). Neither does the record
support Guest’s assertion that he was unaware he could plead guilty yet retain
his right to appeal. During his rearraignment proceeding, Guest affirmed that
counsel had advised him of his right to appeal and stated that he was waiving
that right knowingly and voluntarily as part of the plea agreement.
      Guest’s guilty plea was knowing and voluntary. See Carr, 740 F.2d at
344. The magistrate judge conducted an extensive plea colloquy during which
Guest expressed his desire to plead guilty, answered questions from the court
in a manner indicating that he understood the nature of the proceedings, and
affirmed that he was entering his guilty plea and plea agreement and



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                                 No. 18-10654

supplement knowingly, freely, and voluntarily. The “strong presumption of
veracity” attaches to these declarations. Blackledge v. Allison, 431 U.S. 63, 74
(1977).
      The district court determined that withdrawal would prejudice the
Government, would inconvenience the court, and would waste judicial
resources. Even if Guest could show the lack of prejudice and inconvenience,
these factors are not dispositive. See Carr, 740 F.2d at 345.
      We conclude that Guest has failed to show that the district court abused
its discretion in determining that the factors weighed against granting his
motion to withdraw his guilty plea. See McKnight, 570 F.3d at 645.
      The judgment of the district court is AFFIRMED.




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