     Case: 11-41303     Document: 00512031381         Page: 1     Date Filed: 10/24/2012




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

                                                                            FILED
                                                                         October 24, 2012
                                     No. 11-41303
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELIA PENA-PEREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1940-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Elia Pena-Perez (Pena) pleaded guilty of possession of more than five
kilograms of cocaine with intent to distribute and was sentenced to a 151-month
term of imprisonment and to a five-year period of supervised release. Pena
contends in this appeal that the district court abused its discretion in denying
her motion to withdraw her guilty plea and that her conviction must be vacated
because the magistrate judge did not comply with Rule 11 of the Federal Rules



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41303

of Criminal Procedure in receiving her guilty plea and because the plea was
tainted by ineffective assistance of counsel.
      In her plea agreement, Pena agreed to waive her statutory right to appeal
her conviction. We may entertain Pena’s challenge of the district court’s denial
of her motion to withdraw her plea, notwithstanding the appeal waiver. See
United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). Because Pena’s
argument with respect to the validity of the Rule 11 colloquy is subsumed within
the question whether the district court erred denying the motion to withdraw the
plea, we have considered it also. Because Pena has not had an opportunity to
develop her ineffective assistance of counsel claim fully, however, we decline to
consider it at this juncture. See United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006).
      In arguing that the guilty plea was unknowing and involuntary, Pena
points to a moment at the end of the guilty-plea proceeding when she hesitated
and looked toward counsel after being asked whether she wished to proceed with
her guilty plea. The magistrate judge admonished her that she had to answer
the question and that counsel could not answer it for her. Pena argues that the
magistrate judge should have given her an opportunity to confer with counsel.
This contention is without merit.
      Rule 11 directs the court to address the defendant personally and to
determine that the defendant understands her rights and the consequences of
her plea. RULE 11(b)(1). It was not improper for the magistrate judge to
admonish Pena that she was required to answer his questions personally. See
McCarthy v. United States, 394 U.S. 459, 464-67 (1969). There is no reason to
believe that Pena did not understand, at that stage of the proceeding, what she
was there to do and why she was doing it. The magistrate judge had already
asked Pena whether she had an adequate opportunity to confer with counsel and
she had expressed an understanding of each element of the Rule 11 colloquy.
There was nothing left for Pena to do but to move forward with the plea and to

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                                  No. 11-41303

admit the facts in the factual resume or to decline to do so. The magistrate judge
gave her that choice. After Pena indicated that she wished to continue, she
indicated that she understood everything that had been explained to her, and
she responded negatively when she was asked whether she had any questions.
A fair reading of the rearraignment transcript provides no support for Pena’s
contention that her guilty plea was unknowing and involuntary because of flaws
in the Rule 11 colloquy.
      The district court’s order denying Pena’s motion to withdraw her guilty
plea is reviewed for an abuse of discretion. United States v. Powell, 354 F.3d
362, 370 (5th Cir. 2003). The following seven factors are considered: (1) whether
the defendant has asserted her innocence; (2) whether withdrawal would
prejudice the Government; (3) whether the defendant has delayed in filing her
withdrawal motion; (4) whether withdrawal would substantially inconvenience
the court; (5) whether close assistance of counsel was available; (6) whether the
original plea was knowing and voluntary; and (7) whether withdrawal would
waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.
1984).   The district court should base its decision on the totality of
circumstances. Powell, 354 F.3d at 370.
      Pena argues again, with respect to the fifth and sixth Carr factors, that
the magistrate judge did not permit her to consult with counsel when she
hesitated, at the conclusion of the rearraignment hearing, in responding to the
question whether she wished to proceed with her guilty plea. For reasons
already explained, this contention is without merit.
      Pena argues, with respect to the third Carr factor, that her request to
withdraw her guilty plea was delayed because she did not meet with counsel for
several weeks after the rearraignment, and because her letters to the court
making that request were delayed so that they could be translated. This
argument is without merit. We note that Pena did not ask for leave to withdraw



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                                  No. 11-41303

her guilty plea in several letters she wrote to the court prior to her meeting with
counsel.
      In this case, the district court carefully weighed the Carr factors and
determined that, under the totality of the circumstances, Pena had not shown
that there was a fair and just reason to permit her to withdraw her guilty plea.
Pena has not shown that the district court abused its discretion. See Powell, 354
F.3d at 370. The judgment is AFFIRMED.




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