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

                                                                  FILED
                                                                October 6, 2008
                                No. 07-11178
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

SERGIO MARTIN ORTEGA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                     for the Northern District of Texas
                         USDC No. 3:06-CR-334-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Sergio Martin Ortega appeals his conviction on three counts of assaulting
a federal officer with a dangerous weapon and one count of possession of a
firearm during and in relation to a crime of violence. Ortega argues that the
district court erred in denying his motion to withdraw his guilty plea due to its
involuntary nature. The denial of Ortega’s motion is reviewed for an abuse of
discretion. See United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997).



      *
      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should not be published and is not precedent except under the limited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. 07-11178

      Under FED. R. CRIM. P. 11(D)(2)(B), withdrawal of a guilty plea may be
permitted before a defendant is sentenced for “any fair and just reason.” In
determining whether a district court has abused its discretion in denying
withdrawal, this court traditionally considers seven relevant factors. Id. (citing
United States v. Carr, 740 F.2d 339, 343-44 (1984)). Those factors are: (1)
whether the defendant asserted his innocence; (2) whether withdrawal would
prejudice the Government; (3) whether the defendant delayed in filing the
motion to withdraw; (4) whether withdrawal would inconvenience the court;
(5) whether adequate assistance of counsel was available; (6) whether the plea
was knowing and voluntary; and (7) whether withdrawal would waste judicial
resources. Id. No single factor is determinative; instead, the court makes its
determination based on the totality of the circumstances. United States v.
Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      Ortega’s assertion of a possible defense to the assault charges does not
amount to an affirmative assertion of innocence. Further, the district court
correctly determined that there was nothing before it in any written or oral
presentation which indicated that Ortega was asserting his innocence. With
respect to the Carr factors of prejudice to the Government, the timing of the
motion, and inconvenience to the court, the district court found these to be
neutral factors. However, the court did note that it would have to “start all over”
if the case proceeded to trial. The district court found that the issue of counsel’s
assistance to Ortega weighed against withdrawal, and Ortega concedes that the
record does not suggest that this factor weighs in his favor.
      The district court also noted that it was inconvenienced to the extent that
granting Ortega’s motion would encourage the trend toward the filing of baseless
motions to withdraw after sentencing determinations had been made. “The
rationale for allowing a defendant to withdraw a guilty plea is to permit him to
undo a plea that was unknowingly made at the time it was entered. Carr, 740
F.2d at 345. “The purpose is not to allow a defendant to make a tactical decision

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to enter a plea, wait several weeks, and then obtain a withdrawal if he believes
that he made a bad choice.” Id. Ortega’s argument that the district court erred
in making this observation is without merit.
      The district court also correctly found that Ortega’s original guilty plea
was knowing and voluntary. To enter a knowing and voluntary guilty plea, the
defendant must have a “full understanding of what the plea connotes and of its
consequence.”     Boykin v. Alabama, 395 U.S. 238, 244 (1969).              At the
rearraignment, Ortega acknowledged that he was pleading guilty “freely and
voluntarily” because he was guilty of the offense and “for no other reason.” The
district court noted that it “specifically handled firsthand” Ortega’s plea and that
it had a lengthy plea colloquy with Ortega wherein it saw “no confusion
whatsoever” from Ortega. The district court did not abuse its discretion in
denying the motion to withdraw. See Grant, 117 F.3d at 789. Appointed
counsel’s motion to withdraw based on a breakdown in the attorney client
relationship is denied. See 18 U.S.C. § 3006A(c).
      AFFIRMED; COUNSEL’S MOTION TO WITHDRAW IS DENIED.




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