     Case: 15-51144      Document: 00513981181         Page: 1    Date Filed: 05/05/2017




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

                                    No. 15-51144                              FILED
                                  Summary Calendar                         May 5, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDDIE MENDOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:15-CR-178-1


Before STEWART, Chief Judge and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Eddie Mendoza appeals his conviction for possession with intent to
distribute heroin and the 151-month sentence he received. He argues that the
district court abused its discretion by denying his motion to withdraw his
guilty plea.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51144

      Because Mendoza did not seek to withdraw his guilty plea before the
district court accepted the plea, he had no absolute right to withdraw his plea.
See United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008); FED. R. CRIM. P.
11(d). However, “a district court may, in its discretion, permit withdrawal
before sentencing if the defendant can show a ‘fair and just reason.’” United
States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citation 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
delayed in filing the motion; (4) granting the motion would inconvenience the
court; (5) the defendant enjoyed close assistance of counsel; (6) the defendant
knowingly and voluntarily pleaded guilty; and (7) a waste of judicial resources
would result from granting the motion. United States v. Carr, 740 F.2d 339,
343-44 (5th Cir. 1984). A review of the Carr factors in this case discloses no
abuse of discretion and supports the district court’s decision to deny Mendoza’s
motion to withdraw his plea.
      While Mendoza’s appeal was pending, this court decided United States
v. Hinkle, 832 F.3d 569, 576-77 (5th Cir. 2016), wherein the court held that a
conviction for delivery of a controlled substance under Tex. Health & Safety
Code § 481.112 did not qualify as a “controlled substance offense” under
U.S.S.G. § 4B1.1. Relying on Hinkle, Mendoza filed an amended brief arguing
that the district court erred when it used his 2009 conviction for manufacture
or delivery of heroin under § 481.112 as a predicate offense for purposes of
§ 4B1.1.
      We review this issue for plain error. United States v. Medina-Anincacio,
325 F.3d 638, 643 (5th Cir. 2003). To show plain error, Mendoza must show a
forfeited error that is clear or obvious and that affects his substantial rights.



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                                 No. 15-51144

Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant makes such
a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In light of Hinkle, Mendoza has shown that the application of the career
offender enhancement based on his 2009 conviction under § 481.112 was a
clear or obvious error that affected his substantial rights. See Molina-Martinez
v. United States, 136 S. Ct. 1338, 1345 (2016); Henderson v. United States, 133
S. Ct. 1121, 1130-31 (2013). Although Mendoza has a lengthy criminal history,
there is a disparity of 133 months between the bottom of the correct guidelines
range and the bottom of the incorrect guidelines range. Given that disparity,
we find it appropriate to exercise our discretion to remand the case for
resentencing.   See Puckett, 556 U.S. at 135; United States v. Martinez-
Rodriguez, 821 F.3d 659, 664-67 (5th Cir. 2016).
      Accordingly, Mendoza’s conviction is affirmed. We vacate the sentence
and remand the case for resentencing.
      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
FOR RESENTENCING.




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