     Case: 14-10938       Document: 00513204402         Page: 1     Date Filed: 09/23/2015




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

                                                                                  FILED
                                                                            September 23, 2015
                                     No. 14-10938
                                   Summary Calendar                            Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JAVIER YBARRA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-56-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Javier Ybarra pleaded guilty, without the benefit of a plea agreement, to
an indictment charging him with conspiracy to possess, with intent to
distribute, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(C). He was sentenced, inter alia, to 240 months’ imprisonment. Ybarra
challenges the district court’s denial of his motion to withdraw his guilty plea
and the court’s drug-quantity calculation for sentencing.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-10938

      A defendant may withdraw his guilty plea before sentencing if he can
establish a “fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2);
United States v. Still, 102 F.3d 118, 123–24 (5th Cir. 1996). Considering each
of the seven factors provided in United States v. Carr, 740 F.2d 339, 343–44
(5th Cir. 1984), the district court rejected Ybarra’s motion.
      Contrary to Ybarra’s claims, the court found: he was aware of his co-
conspirator’s role as an informant for the Fort Worth, Texas, police
department; but his co-conspirator was not acting as an informant during the
timeframe of the conspiracy charged in the indictment. Furthermore, the court
noted Ybarra’s motion, filed four months after his rearraignment and just
seven days prior to his sentencing hearing, was considerably delayed.
Although the court found there was no evidence the Government would suffer
prejudice if the plea was withdrawn, it determined a withdrawal would
inconvenience the court and waste judicial resources. It also found: Ybarra
had the close assistance of counsel; and his guilty plea was knowing and
voluntary.
      Based on the totality of the circumstances, the court did not abuse its
discretion in denying Ybarra’s motion. See United States v. McKnight, 570
F.3d 641, 645 (5th Cir. 2009).
      Because, as he concedes, Ybarra failed to preserve his drug-quantity
claim in district court, our review is only for plain error. In claiming plain
error, he asserts the court failed to conduct a scope-and-foreseeability analysis
pursuant to the Sentencing Guidelines. U.S.S.G. § 1B1.3(a)(1). The analysis,
Ybarra contends, would have relieved him of liability for methamphetamine
found in his co-conspirator’s vehicle on the date of their arrest, resulting in a
shorter sentence. The relevant conduct for conspiratorial activity, however, is
a question of fact; therefore, the court’s drug-quantity finding cannot constitute



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                                No. 14-10938

a plain error, which requires, inter alia, demonstrating a “clear” or “obvious”
error. E.g., United States v. Castellon-Aragon, 772 F.3d 1023, 1026 (5th Cir.
2014).
      AFFIRMED.




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