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

                                                FILED
                                                                September 22, 2009
                               No. 08-50961
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

SERVANDO MARTINEZ,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 5:05-CR-772-10


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Servando Martinez appeals following his guilty plea to conspiracy to
possess with intent to distribute five kilograms or more of cocaine. Martinez
argues that the district court abused its discretion in denying his motion to
withdraw his guilty plea filed eleven months after he entered the plea. He
contends that based on an analysis of the factors considered in United States v.




      *
      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should not be published and is not precedent except under the limited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. 08-50961

Carr, 740 F.2d 339 (5th Cir. 1984), he showed a fair and just reason for the
withdrawal of the plea.
      Martinez has not carried his burden of showing a fair and just reason for
allowing the withdrawal of his plea. United States v. Still, 102 F.3d 118, 124
(5th Cir. 1996). His belated assertion of innocence, which is contrary to his
sworn testimony at his rearraignment and his reaffirmation of his guilt to the
district court at a post-guilty plea hearing, is not credible and he has provided
no substantial reason for the eleven-month delay in filing the motion. See
United States v. Lampazianie, 251 F.3d 519, 524-25 (5th Cir. 2001). The record
refutes Martinez’s contention that he did not understand that he was pleading
guilty to the drug conspiracy charge. Martinez was also made aware of the
potential penalty that could be imposed for his offense and the rights that he
was waiving by pleading guilty. See Boykin v. Alabama, 395 U.S. 238, 244
(1969). Thus, even if his counsel provided him with an incorrect estimate of his
potential sentence, the record reflects that Martinez understood the length of
time that he faced if he pleaded guilty and there is no indication that he would
have proceeded to trial on the conspiracy and money laundering counts but for
counsel’s alleged error. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); United States
v. Santa Lucia, 991 F.2d 179, 180 (5th Cir. 1993). Thus, he failed to show he was
prejudiced by counsel’s representation. Hill, 474 U.S. at 59.
      In light of the length of the delay since his guilty plea, Martinez has not
shown that the withdrawal of his plea will not prejudice the Government, who
would have to reassemble the evidence to be presented in the case. Nor has he
shown that proceeding to trial would not inconvenience the district court or
waste judicial resources.
      Martinez has not established that the district court abused its discretion
in denying his motion to withdraw. See United States v. Powell, 354 F.3d 362,
370 (5th Cir. 2003).
      AFFIRMED.

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