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

                                                FILED
                                                                  March 3, 2009
                                No. 06-41053
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ERNEST GONZALEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:05-CR-70-2


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Ernest Gonzalez appeals his guilty plea conviction for conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Gonzalez contends that the district
court abused its discretion when it denied his motion to withdraw his guilty plea.
      This court reviews the denial of a motion to withdraw for abuse of
discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 06-41053

no absolute right to withdraw a guilty plea, and the defendant bears the burden
of establishing a “fair and just reason” for withdrawal. Id. In determining
whether the defendant has met this standard, this court reviews seven factors:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal
would prejudice the government; (3) whether the defendant delayed in filing the
withdrawal motion; (4) whether withdrawal would inconvenience the court;
(5) whether close assistance of counsel was available; (6) whether the 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). In
applying these factors, courts are to consider the totality of the circumstances.
Id. at 344.
      Given the absence of a credible assertion of innocence, the delay in filing
the motion, the possible inconvenience and waste of judicial resources,
Gonzalez’s statements at the rearraignment hearing, and the totality of the
circumstances, the district court did not abuse its discretion when it denied
Gonzalez’s motion to withdraw his guilty plea. See id. at 343-44. Accordingly,
the district court’s judgment is AFFIRMED.




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