     Case: 10-41014     Document: 00511510570          Page: 1    Date Filed: 06/16/2011




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

                                                 FILED
                                                                            June 16, 2011
                                     No. 10-41014
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TONY BLANCARTE, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:09-CR-23-5


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Tony Blancarte, Jr., and 17 others were charged in one count of a
superseding indictment with conspiring to possess with intent to distribute five
kilograms or more of a mixture or substance containing cocaine “in the Eastern
District of Texas and elsewhere,” in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Pursuant to a written plea agreement, Blancarte pleaded guilty as charged.
Three months after the district court accepted his guilty plea, Blancarte moved
to withdraw it. Following a hearing, the magistrate judge recommended that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41014

motion be denied. Over Blancarte’s objections, the district court adopted the
magistrate judge’s recommendation and denied the motion. The district court
sentenced Blancarte within the advisory guidelines range to 169 months of
imprisonment, to be followed by five years of supervised release.
      We review the district court’s 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). Because Blancarte did not seek to withdraw his guilty plea before the
district court accepted it, he had no absolute right to withdraw his plea. See
United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008); F ED. R. C RIM. P. 11(d).
Before sentencing, a defendant may withdraw his guilty plea that the district
court has accepted if “the defendant can show a fair and just reason for
requesting the withdrawal.”      F ED. R. C RIM . 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).
      In reviewing the denial of a motion to withdraw a guilty plea, we consider
whether (1) the defendant asserted his innocence, (2) withdrawal would
prejudice the government, (3) the defendant delayed in filing the withdrawal
motion, (4) withdrawal would inconvenience the court, (5) close assistance of
counsel was available to the defendant, (6) the 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). Because we must consider the totality of the
circumstances in applying these factors, id. at 344, “[n]o single factor or
combination of factors mandates a particular result,” United States v. Badger,
925 F.2d 101, 104 (5th Cir. 1991).
      Based on the totality of the circumstances, Blancarte failed, both in the
court below and in this court, to carry his burden of establishing a fair and just
reason for the withdrawal of his guilty plea. See Still, 102 F.3d at 124. Our
review of the record, Blancarte’s arguments, and the district court’s

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                                 No. 10-41014

consideration of the Carr factors shows that the district court did not abuse its
discretion in denying Blancarte’s motion to withdraw his guilty plea.
      The judgment of the district court is AFFIRMED.




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