           Case: 17-15143    Date Filed: 09/19/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15143
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:16-cr-00193-SCJ-AJB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CIPRIANO VARGAS,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (September 19, 2018)

Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.

PER CURIAM:
               Case: 17-15143    Date Filed: 09/19/2018   Page: 2 of 4


      Cipriano Vargas appeals the district court’s denial of his request to withdraw

his guilty plea.

      Vargas pleaded guilty pursuant to a written plea agreement to one count of

conspiracy to possess with intent to distribute methamphetamine. But that was

only after he had declined to change his plea at two earlier hearings scheduled for

that purpose, fired his retained counsel, had the district court appoint new counsel,

and asked the court to cancel a third would-be change of plea hearing. Before

accepting Vargas’ guilty plea, the court conducted a thorough plea colloquy in

compliance with Rule 11 of the Federal Rules of Criminal Procedure. During that

colloquy and while under oath, Vargas affirmed that he fully understood his plea

agreement and the rights he was waiving, that he was guilty of the charged

conduct, and that he was pleading guilty knowingly and voluntarily.

      Vargas’ sentence hearing started two months later, but the district court

continued the hearing for one week because Vargas asked for more time to review

the presentence investigation report with his appointed counsel. When the hearing

resumed, defense counsel explained to the court that Vargas was asserting that he

was innocent of the drug conspiracy and wanted to withdraw his guilty plea. The

court denied Vargas’ request, finding that it was just an attempt to delay

sentencing. The court then sentenced him to fifteen years imprisonment followed

by ten years of supervised release.


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      “We review the denial of a request to withdraw a guilty plea for abuse of

discretion. There is no abuse of discretion unless the denial is arbitrary or

unreasonable.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006)

(quotation marks and citations omitted). “A district court abuses its discretion if it

fails to apply the proper legal standard or to follow proper procedures in making

the determination, or makes findings of fact that are clearly erroneous.” United

States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (quotation marks

omitted).

      A defendant may withdraw a guilty plea after the district court has accepted

it, but before sentencing, if “the defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “In determining

whether the defendant has met his burden to show a fair and just reason, a district

court may consider the totality of the circumstances surrounding the plea.” Brehm,

442 F.3d at 1298 (quotation marks omitted). “Factors analyzed include

(1) whether close assistance of counsel was available; (2) whether the plea was

knowing and voluntary; (3) whether judicial resources would be conserved; and

(4) whether the government would be prejudiced if the defendant were allowed to

withdraw his plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988)

(citation omitted).




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      Vargas contends that his guilty plea was not knowing and voluntary, as

demonstrated by his reluctance to plead guilty and his assertion of innocence at the

sentence hearing. But he did plead guilty. And he “swore during the plea colloquy

that he committed the alleged offense, understood the possible consequences of his

guilty plea, and waived his right to trial.” United States v. Medlock, 12 F.3d 185,

187 (11th Cir. 1994) (quotation marks omitted). The district court did not clearly

err by crediting those sworn statements. See id. (“There is a strong presumption

that the statements made during the colloquy are true.”). Nor did it clearly err by

discrediting Vargas’ belated assertion of innocence and finding, based on his past

conduct, that his request to withdraw his guilty plea was merely an attempt to delay

sentencing. See Buckles, 843 F.3d at 472 (“The good faith, credibility and weight

of a defendant’s assertions in support of [a request to withdraw a guilty plea] are

issues for the trial court to decide.”). Delaying sentencing is not a fair and just

reason to withdraw a guilty plea. The district court did not abuse its discretion by

denying Vargas’ request.

      AFFIRMED.




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