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

                                                FILED
                                                                 July 29, 2009
                               No. 08-50904
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ALFONSO VILLASANA CUELLAR,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:06-CR-476-ALL


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Alfonso Villasana Cuellar (Cuellar) appeals his guilty plea conviction and
sentence for possession with intent to distribute five kilograms or more of
cocaine. Cuellar makes the following arguments: (1) the district court committed
reversible plain error in connection with the plea proceedings, (2) the district
court abused its discretion by denying Cuellar’s motion to withdraw his guilty
plea, (3) the district court committed reversible plain error in connection with



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50904

the sentencing hearing, and (4) the Federal Public Defender (FPD) appointed to
represent him rendered ineffective assistance.
      Cuellar argues that the district court committed reversible error during
the rearraignment because the court did not fully comply with the requirements
of F ED. R. C RIM. P. 11. Specifically, Cuellar asserts that the district court failed
to comply with Rule 11(b)(1)(A) when it failed to advise him that the
Government had the right to prosecute him for perjury or making false
statements if his testimony under oath was not true. He further asserts that the
district court failed to comply with Rule 11(b)(1)(M) when it failed to explain to
him that the court was required to calculate the applicable guidelines range,
consider that range, consider possible departures under the Guidelines, and to
consider the sentencing factors under 18 U.S.C. § 3553(a).
      Because Cuellar did not object to any Rule 11 error in the district court,
review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
Cuellar has not demonstrated that, but for the Rule 11 errors committed by the
district court, he would not have entered his plea. United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Accordingly, he has not shown that the district
court committed reversible plain error in connection with the plea proceedings.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      Next, Cuellar argues that the district court abused its discretion by
denying his motion to withdraw his guilty plea. Cuellar asserts that the district
court did not review a transcript of the hearing on Cuellar’s motion for
appointment of counsel. He also argues that a balancing of the factors set forth
in United States v. Carr, 740 F.2d 339, 343 (5th Cir. 1984), favored allowing him
to withdraw his plea and that the district court’s failure to allow the withdrawal
constituted an abuse of discretion.
      This court reviews for abuse of discretion the denial of a motion to
withdraw a guilty plea. See United States v. Grant, 117 F.3d 788, 789 (5th Cir.
1997). The district court may grant a motion to withdraw a guilty plea after the

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court accepts the plea before it imposes sentence if the defendant shows “any fair
and just reason.” R ULE 11(d)(2)(B). In evaluating the denial of a motion to
withdraw a guilty plea, the court considers the seven factors set forth in Carr.
Grant,117 F.3d at 789; Carr, 740 F.2d at 343-44. The burden of establishing a
fair and just reason for withdrawing a guilty plea rests with the defendant. See
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). No single factor or
combination of factors mandates a particular result. Id.
        Cuellar asserts that the district court should have reviewed the transcript
of the hearing on the motion for appointment of counsel. However, Cuellar did
not rely on the transcript in his motion or provide a copy of the transcript to the
district court. Moreover, an evaluation of the Carr factors in light of the record
as a whole does not dictate reversal in this case. The majority of the Carr factors
are either neutral or weigh in favor of denying the motion to withdraw the guilty
plea.   Therefore, the district court did not abuse its discretion by denying
Cuellar’s motion. See Grant, 117 F.3d at 789.
        Cuellar also argues that the district court committed reversible plain error
in connection with the sentencing hearing. Specifically, Cuellar complains that
the district court failed to comply with F ED. R. C RIM. P. 32(i)(1)(A) and verify that
Cuellar and the FPD had read and discussed the presentence report. He also
argues that the district court failed to comply with Rule 32(i)(3), which provides
that a district court must make findings on disputed matters at sentencing, and
Rule 32(i)(4), which provides that the district court must afford the defendant
and his attorney the right to address the court before sentencing regarding any
matters that are relevant to the sentencing.
        Cuellar did not object to the district court’s omissions below. Accordingly,
review is for plain error. See United States v. Esparza-Gonzalez, 268 F.3d 272,
274 (5th Cir. 2001). Cuellar has not shown a clear or obvious error that affected
his substantial rights. See Puckett, 129 S. Ct. at 1429. Accordingly, he has not
demonstrated that the district court committed reversible plain error. Id.

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      Finally, Cuellar argues that his constitutional rights were violated because
the FPD rendered ineffective assistance. Cuellar argues that the FPD’s overall
representation was deficient and that his communications with Cuellar were
inadequate.
      This circuit’s general rule “is that a claim of ineffective assistance of
counsel cannot be resolved on direct appeal when the claim has not been raised
before the district court since no opportunity existed to develop the record on the
merits of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th
Cir. 1987). Cuellar’s instant claims of ineffective assistance of counsel were not
presented to or addressed by the district court. Consequently, those claims were
not adequately developed before being asserted in this court. We therefore
decline to address them in this direct appeal without prejudice to any right
Cuellar may have to raise them in a subsequent 28 U.S.C. § 2255 motion. See
United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159
(2008).
      AFFIRMED.




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