     Case: 13-41040      Document: 00512806432         Page: 1    Date Filed: 10/17/2014




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

                                    No. 13-41040
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      October 17, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

ALEJANDRO GLORIA-REYES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-615-7


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Alejandro Gloria-Reyes pleaded guilty to conspiracy to possess with the
intent to distribute more than 5 kilograms of cocaine and was sentenced to 130
months of imprisonment and five years of supervised release. He appeals the
district court’s denial of his motion to withdraw his guilty plea.
       Once the district court accepts a defendant’s guilty plea, the defendant
has no absolute right to withdraw his guilty plea. FED. R. CRIM. P. 11(d);


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-41040    Document: 00512806432     Page: 2   Date Filed: 10/17/2014


                                 No. 13-41040

United States v. Conroy, 567 F.3d 174, 177 (5th Cir. 2009); United States v.
Carr, 740 F.2d 339, 344 (5th Cir. 1984). A district court may grant a motion to
withdraw a guilty plea upon a showing of “a fair and just reason for requesting
the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). This court reviews the district
court’s denial of a motion to withdraw a guilty plea for abuse of discretion.
Conroy, 567 F.3d at 177.
      Seven factors are relevant to the determination: (1) whether the
defendant asserts his innocence, (2) whether the Government will be
prejudiced, (3) whether the defendant delayed filing the motion, (4) whether
withdrawal will “substantially inconvenience” the court, (5) whether the
defendant had “close assistance” of counsel, (6) whether the plea was knowing
and voluntary, and (7) whether withdrawing the plea will waste judicial
resources. Carr, 740 F.2d at 343-44.
      Gloria-Reyes argues that the district court abused its discretion in
denying his motion to withdraw his guilty plea. He asserts his innocence on
the basis that he committed the offense under duress due to threats by the
drug owners, arguing that at the time he entered his plea of guilty, he was
overwhelmed and scared, and operating under the erroneous belief that
presenting his claim of duress to a jury would be detrimental and that his claim
of duress could be explained to the sentencing judge who might allow him to
be released from custody. He explains that he did not assert his claim of duress
at the time of his arrest because he was afraid he was being followed by the
owners of the drugs. He concedes that he admitted knowledge and agreed to
the factual basis when he pleaded guilty.       However, he argues that his
statements were made in error because he believed that proceeding to trial
might expose his family to harm, and he asserts that his state of mind was
adversely affected by these thoughts.



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    Case: 13-41040    Document: 00512806432     Page: 3   Date Filed: 10/17/2014


                                 No. 13-41040

      The district court considered the factors set forth in Carr. The court
found that Gloria-Reyes had been represented by a competent and experienced
attorney throughout the proceedings, that he had never denied that he
knowingly possessed and transported a significant quantity of cocaine, and
that his guilty plea was entered knowingly and voluntarily. The court noted
that the first mention of duress was made in Gloria-Reyes’s response to the
presentence report on January 23, 2013, four months after the plea, in which
he requested a downward departure, not the withdrawal of the guilty plea. The
court further noted the contradictory assertions made by Gloria-Reyes on the
eve of sentencing, first in his letter claiming he committed the offense against
his will, then in his statement of acceptance of responsibility which
contradicted his letter, followed by his motion to withdraw his guilty plea
which contradicted his statement of responsibility. The court found Gloria-
Reyes’s reasons for delaying his motion to withdraw, that he was overwhelmed
and scared, not believable. Noting that the motion to withdraw was filed 45
months after the offense occurred, the court concluded that “it is not
unreasonable to believe that the Government would have some difficulty
preparing a case for trial.”     Additionally, the court concluded that the
withdrawal of Gloria-Reyes’s guilty plea would be an inconvenience to the
court, explaining that it had a significant criminal docket and that it had
expected by now to have sentenced Gloria-Reyes, the last of the eight
defendants in this case.
      The totality of the circumstances do not show that the district court
abused its discretion in denying Gloria-Reyes’s motion to withdraw his guilty
plea. See Conroy, 567 F.3d at 177-78.
      AFFIRMED.




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