     Case: 13-40431      Document: 00512592518         Page: 1    Date Filed: 04/10/2014




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


                                    No. 13-40431
                                                                             FILED
                                                                         April 10, 2014
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENNETH BUHOLTZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-135-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Kenneth Buholtz pleaded guilty, pursuant to an
agreement, to transporting a minor in interstate commerce with the intent that
the minor engage in sexual activity for which a person can be charged with a
criminal offense. The district court conditionally accepted Buholtz’s plea and
the plea agreement pending review of the Presentence Report. Buholtz later
moved to withdraw his plea, but the district court denied the motion.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40431

      In general, Buholtz’s appeal asserts errors in the denial of his motion to
withdraw his guilty plea. We need not determine whether the appellate waiver
in Buholtz’s plea agreement bars the instant appeal because the government
has waived this issue. See United States v. Story, 439 F.3d 226, 231 (5th Cir.
2006).
      Before a district court accepts a guilty plea or a plea of nolo contendere,
the defendant may withdraw the plea “for any reason or no reason.” FED.
R. CRIM. P. 11(d)(1). The rule provides the defendant “an absolute right to
withdraw his or her guilty plea before the court accepts it.” United States v.
Arami, 536 F.3d 479, 483 (5th Cir. 2008). After the district court has accepted
a plea of guilty or nolo contendere, but before it imposes sentence, a defendant
may withdraw the plea only if he “can show a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B).
      Buholtz contends that he had an absolute right to withdraw his guilty
plea because the district court had not accepted it when he filed his motion to
withdraw the plea. As Buholtz concedes, his failure to raise this issue in the
district court results in plain error review. See Arami, 536 F.3d at 483. To
demonstrate plain error, Buholtz must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      Under Rule 11 of the Federal Rules of Criminal Procedure, “[g]uilty pleas
can be accepted while plea agreements are deferred, and the acceptance of the
two can be separated in time.” United States v. Hyde, 520 U.S. 670, 674 (2007).
Given the district court’s conditional acceptance of the guilty plea, Buholtz has
not shown that the district court committed clear or obvious error in requiring



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                                 No. 13-40431

him to show a fair and just reason for withdrawing his plea. See Puckett, 556
U.S. at 135; United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012).
      Buholtz claims that he established a fair and just reason for withdrawing
his guilty plea and that the district court abused its discretion in denying his
motion to withdraw it. In determining whether there is a fair and just reason
for withdrawal, the district court should consider the factors identified in
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1980). 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).
      Buholtz’s bald assertion of innocence is insufficient to show that the
district court erred in denying his motion to withdraw his guilty plea. See
United States v. Bond, 87 F.3d 695, 701 (5th Cir. 1996). His delay of over 11
months in moving to withdraw his guilty plea weighs against him. See Carr,
740 F.2d at 345. Considering the actions taken by his trial attorney, we are
satisfied that Buholtz had the close assistance of counsel. See United States v.
McKnight, 570 F.3d at 646-47. Buholtz has waived any challenge to the district
court’s determination that his guilty plea was knowing and voluntary by failing
to raise the issue in his appellate brief. See United States v. Ogle, 415 F.3d
382, 383 (5th Cir. 2005). Finally, we defer to the district court’s determination
that the government would suffer prejudice if the guilty plea were withdrawn.
See United States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991). Based on the
totality of the Carr factors, most of which weigh against Buholtz, the district
court’s denial of Buholtz’s motion to withdraw his guilty plea was not an abuse
of discretion. See United States v. Badger, 925 F.2d 101, 103 (5th Cir. 1991).
      AFFIRMED.




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