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

                                                                  FILED
                                                               December 29, 2008
                               No. 08-50387
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JASEN GABRIEL CERVANTEZ

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:07-CR-16-5


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Jasen Gabriel Cervantez, on December 4, 2007, pleaded guilty to a single
count of conspiracy to distribute cocaine. He was advised by the court at the
Rule 11 hearing that, among other things, the maximum punishment he faced
included 20 years’ confinement, and that the court was not bound to sentence
within the Sentencing Guidelines. On March 14, 2008, the PSR was prepared.
It stated that the conspiracy involved 100 kilograms of cocaine, and calculated
the guideline range at 188 to 235 months’ confinement (using Criminal History

      *
      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should not be published and is not precedent except under the limited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. 08-50387

Category IV).1 No objection to the PSR was filed (Cervantez stated at the
sentencing hearing that he had reviewed the PSR with his lawyer). At his April
14, 2008 sentencing hearing, Cervantez orally moved to withdraw his guilty
plea; he asserted that if he was going to be sentenced based on a drug quantity
of 100 kilograms, he wished to withdraw his guilty plea. He stated his lawyer
had told him he should not be charged with more than 50 kilograms. The
district court denied the motion and ultimately sentenced Cervantez within the
advisory guidelines range to 188 months of imprisonment. Cervantez now
appeals the denial of his motion to withdraw his guilty plea. His brief in this
court admits that “close assistance of counsel was available to him at the time
of his plea.”
      A defendant may withdraw his plea after its acceptance but before the
imposition of sentence if he can show “a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). “The burden of establishing a fair
and just reason for withdrawing a guilty plea remains at all times on the
defendant.” United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996) (citations
omitted). When determining whether to allow a defendant to withdraw his
guilty plea, the district court should consider whether: (1) the defendant has
asserted his innocence, (2) withdrawal would prejudice the Government, (3) the
defendant has delayed in filing his withdrawal motion, (4) withdrawal would
substantially inconvenience the court, (5) close assistance of counsel was
available, (6) the original 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). “A district court’s denial of a motion to withdraw a guilty plea is
reviewed for abuse of discretion.” United States v. Powell, 354 F.3d 362, 370 (5th
Cir. 2003).



      1
      The statutory sentencing range was the same for 50 kilograms as for 100.
21 U.S.C. § 841(b)(1)(C).

                                        2
                                  No. 08-50387

        The only reason Cervantez gave for his oral motion to withdraw his plea
was his disagreement with the quantity of cocaine attributed to him for
sentencing purposes. Cervantez has not asserted his innocence, he did not seek
to withdraw his plea until approximately four months after his rearraignment,
he pleaded guilty with the assistance of counsel, and his plea was knowing and
voluntary. See Carr, 740 F.2d at 343-44; United States v. Washington, 480 F.3d
309, 317 (5th Cir. 2007). We conclude that Cervantez has not shown that the
district court abused its discretion by denying his motion to withdraw his guilty
plea.
                                 AFFIRMED.




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