     Case: 14-41147      Document: 00513113178         Page: 1    Date Filed: 07/13/2015




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

                                    No. 14-41147
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         July 13, 2015
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

JESUS PLANCARTE-PENALOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CR-9-3


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Jesus Plancarte-Penaloza and three others were indicted for conspiracy
to distribute and possess with intent to distribute 50 grams or more of actual
methamphetamine. Plancarte-Penaloza pleaded guilty, pursuant to a written
plea agreement. The agreement stipulated that 120 months in prison was an
appropriate sentence, that neither party would seek a variance or departure


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41147

from that sentence, and that the plea could be withdrawn if the district court
did not accept the sentencing agreement.         Plancarte-Penaloza moved to
withdraw his guilty plea because he did not understand the terms of the
agreement or that he would be sentenced to 120 months in prison. The district
court held a hearing on the motion to withdraw the plea and denied the motion.
The district court sentenced Plancarte-Penaloza to 120 months in prison.
      On appeal, Plancarte-Penaloza argues that the district court erred in
denying his motion to withdraw his guilty plea. Before sentencing, a defendant
may withdraw his guilty plea that the district court has accepted if “the
defendant can show a fair and just reason for requesting the withdrawal.” FED.
R. CRIM. P. 11(d)(2)(B). In determining whether there is a fair and just reason
for withdrawal, the court should consider whether (1) the defendant asserted
his innocence, (2) withdrawal would prejudice the government, (3) the
defendant delayed in filing the withdrawal motion, (4) withdrawal would
substantially inconvenience the court, (5) close assistance of counsel was
available to the defendant, (6) the plea was knowing and voluntary, and (7)
withdrawal would waste judicial resources. United States v. Carr, 740 F.2d
339, 343-44 (5th Cir. 1984). Plancarte-Penaloza argues that the Carr factors
should be revisited. “[O]ne panel of this court cannot overrule the decision of
another panel; such panel decisions may be overruled only by a subsequent
decision of the Supreme Court or by the Fifth Circuit sitting en banc.” Lowrey
v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Accordingly, we will review
the district court’s denial of Plancarte-Penaloza’s motion to withdraw his guilty
plea using the Carr factors.
      We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). “[N]o



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                                 No. 14-41147

single factor or combination of factors mandates a particular result.” United
States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). In a hearing on the motion
to withdraw Plancarte-Penaloza’s guilty plea, the district court addressed each
of the Carr factors. Our review confirms that the Carr factors support the
district court’s decision to deny the motion. Plancarte-Penaloza has not shown
that the district court abused its discretion in finding that he failed to show a
fair and just reason for withdrawing his plea. See United States v. Still, 102
F.3d 118, 124 (5th Cir. 1996).
      Plancarte-Penaloza    argues    that   counsel   was     ineffective,   under
Strickland v. Washington, 466 U.S. 668, 687 (1984), for failing to inform him
that it was possible to get a sentence that was less than the agreed 120 months
in prison. We generally do not review claims of ineffective assistance of counsel
on direct appeal because there has been no opportunity “to develop the record
on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087,
1091 (5th Cir. 2006) (internal quotation marks and citation omitted). The
record in the instant case is insufficiently developed to permit proper review of
Plancarte-Penaloza’s ineffective assistance claim.
      AFFIRMED.




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