           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 7, 2009
                                       No. 07-20852
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DAVID RODRIGUEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CR-213-2


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       David Rodriguez pled guilty to one count of conspiring to make a false
statement in the acquisition of a firearm, sell a firearm to an undocumented
alien, and sell firearms without a license, in violation of 18 U.S.C. § 371 (1994).
Rodriguez did not sign a written plea agreement. On appeal, Rodriguez argues
that the district court abused its discretion by denying his motion to withdraw
his guilty plea, and erred in imposing a two-level upward adjustment pursuant
to U.S.S.G. § 3C1.1 based on Rodriguez’s obstruction of justice. For the following



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-20852

reasons, we AFFIRM Rodriguez’s conviction. Because the government has
conceded error in connection with Rodriguez’s sentencing, we vacate his sentence
and remand to the district court for resentencing by a different district judge.


                         I.     Background
      Rodriguez and his father, Manuel Rodriguez, operated a private security
company known as Bayou City Patrol Division in the Houston Division of the
Southern District of Texas.      Between January 2000 and December 2005,
Rodriguez hired individuals to act as armed security guards, some of whom were
illegally in the United States. Rodriguez failed to verify their employment
eligibility and identity documents, and directed them to apply for commissions
to carry firearms, requiring written submissions with false and fraudulent
information. On May 31, 2002, Rodriguez purchased a .357 caliber revolver on
behalf of an illegal alien, falsely certifying that he was the actual buyer. He then
transferred the firearm without a valid federal firearms license. Rodriguez pled
guilty before the district court on October 23, 2006, but sought to withdraw his
guilty plea almost one year later by motion dated October 16, 2007, claiming,
among other things, that he was innocent of the crimes charged. Following an
October 22, 2007 hearing, the district court denied Rodriguez’s motion to
withdraw his guilty plea.
      Rodriguez was sentenced to thirty-seven months of imprisonment, based
in part upon the district court’s application of section 3C1.1 of the United States
Sentencing Guidelines, a two-point enhancement for obstruction of justice. The
district court found that Rodriguez impeded the administration of justice by
alerting Bayou City Patrol Division security guards that federal agents would
be investigating their immigration status and work commissions, and warning
that the officers would arrive to check whether unlawful aliens were possessing
firearms. Based upon information contained in the Presentence Report, the



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court found that Rodriguez obstructed justice by passing information to others
to either abandon their post or secrete evidence from federal investigators.
                         II.   Analysis
A.    Motion to Withdraw Guilty Plea
      Rodriguez argues that the district court erred in denying his motion to
withdraw his guilty plea, arguing that he was actually innocent, entered his
guilty plea “under false impressions,” did not understand the consequences of
such plea, and pled guilty only because he did not want to upset the court. This
court reviews the denial of a motion to withdraw a guilty plea for abuse of
discretion. See United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997). A
district court has broad discretion in deciding whether to allow a defendant to
withdraw a guilty plea. United States v. Rinard, 956 F.2d 85, 88 (5th Cir. 1992).
The district court may grant a motion to withdraw a guilty plea before a
defendant is sentenced if the defendant shows “a fair and just reason for
requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B).
      In evaluating the denial of a motion to withdraw a guilty plea, the district
court considers seven relevant factors: (1) whether the defendant asserted his
innocence; (2) whether withdrawal would prejudice the Government; (3) whether
the defendant delayed in filing the motion; (4) whether withdrawal would
substantially 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). The district court makes its determination based on the
totality of the circumstances. Id. at 344. The burden of establishing a fair and
just reason for withdrawing a guilty plea rests at all times with the defendant.
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      Here, Rodriguez claimed actual innocence and that: (1) he was not made
fully aware of the evidence the Government had against him; (2) the only reason
he plead guilty was because he “did not want to upset the court;” (3) he was not

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aware that he would be held responsible for thirty-nine firearms; and (4) his plea
was involuntary because he was “out of it” and was “just trying to get through
it.”
       The record confirms that the district court did not abuse its considerable
discretion by denying Rodriguez’s eleventh-hour motion. The Rule 11 hearing
reflects that the plea was knowing and voluntary. Indeed, the district court,
concerned that the defendant appeared hesitant, stated, “You seem a little
hesitant. Trust me, I don’t take guilty pleas from people who don’t want to give
-- give a guilty plea. What’s your hesitation?” Rodriguez responded only: “I’m
guilty, ma’am,” and subsequently entered a guilty plea. Rodriguez was fully
advised of, and understood, the consequences of his plea, and he was represented
by counsel throughout the proceedings. See Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978) (“Defendants advised by competent counsel and protected by
other procedural safeguards are presumptively capable of intelligent choice in
response to prosecutorial persuasion, and unlikely to be driven to false
self-condemnation.”); United States v. Young, 981 F.2d 180, 184 (5th Cir. 1992).1
Rodriguez indicated that he was satisfied with the representation of counsel
during his plea colloquy. Moreover, Rodriguez’s admission that he committed
the crimes with which he was charged enjoys a strong presumption of truth. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity”).
       In addition, Rodriguez first asserted his innocence almost one year after
pleading guilty, just days before his scheduled sentencing. This court carefully
scrutinizes “eleventh hour” assertions of innocence.                 See United States v.
Lampazianie, 251 F.3d 519, 524-25 (5th Cir. 2001) (“the district court was
entitled both to discount Francesco’s belated assertions of innocence and to
weigh the seven-month delay in denying Francesco’s motion [to withdraw guilty

       1
         Rodriguez is also a former Houston police officer with an understanding of the criminal
justice system. He attended two years of post-secondary education.

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plea].”); United States v. Badger, 925 F.2d at 104 (weighing six week delay);
United States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994) (characterizing six
week delay as significant); United States v. Rinard, 956 F.2d at 88-89 (affirming
district court’s rejection of motion to withdraw guilty plea based, in part, on
sixty-nine day delay between the defendant’s plea and his verbal motion). The
district court here also discounted Rodriguez’s assertion of innocence because his
father had already pled guilty to the same conspiracy on behalf of the corporate
entity.
       Finally, the district court indicated that the government would be
prejudiced in this case, since the government had released and deported crucial
trial witnesses after Rodriguez’s guilty plea. See United States v. McElhaney,
469 F.3d 382, 386 (5th Cir. 2006) (“The court also properly concluded that the
likelihood of prejudice to the government is considerable where the withdrawal
occurs after a key witness has become unavailable for trial.”). In sum, the record
in this case establishes that the district court did not abuse its discretion in
denying the defendant’s motion to withdraw his guilty plea.
B.     Sentencing Enhancements2
       In a supplemental brief, Rodriguez contends that the government breached
an oral plea agreement not to seek any upward adjustments by arguing in favor
of Sentencing Guidelines enhancements for (1) obstruction of justice; (2)
Rodriguez’s role as a leader-organizer; and (3) the presence of multiple firearms.
The government filed a response to the supplemental brief conceding that the
plea agreement was “arguably” violated and that Rodriguez is entitled to be
resentenced before a different district judge. See Santobello v. New York, 404
U.S. 257, 262-63 (1971) (providing for remedy of resentencing before a different



       2
         Rodriguez does not claim that the district court’s eventual sentence was unreasonable;
only that the imposition of certain enhancements was improper. Accordingly, we need not
consider the procedural or substantive reasonableness of the district court’s sentence under
Gall v. United States, 128 S. Ct. 586, 596-97 (2007).

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district judge);3 United States v. Saling, 205 F.3d 764, 768 (5th Cir. 2000) (same).
In light of this concession, we grant the agreed-upon relief by vacating
Rodriguez’s sentence and remanding for resentencing before a different district
judge.4 In so doing, we note that this vacatur is caused not by any error on the
part of the district judge, but rather by the government’s error. Id.
                             III.    Conclusion
       Rodriguez has not established that the district court abused its discretion
by denying his motion to withdraw his guilty plea; however, the parties agree
that he is entitled to be resentenced. Accordingly, Rodriguez’s conviction is
AFFIRMED; his sentence is VACATED, and the case is remanded for
resentencing before a different district judge.




       3
          The remedy of resentencing by a different district judge is not based on any misstep
by the original sentencing judge; instead, it reflects a need to remove the taint of the original
error by the government. See generally Santobello, 404 U.S. at 263 (explaining that remand
to a different judge is not a reflection upon the original judge).
       4
          The first appellate brief in which Rodriguez raised the issue of the breach of the plea
agreement was his supplemental brief. In that brief, he argued that “this court must vacate
[this] sentence and remand to permit Appellant to plea anew before a different judge.” We
construe this request as a request for specific performance to which the government has
agreed. Rodriguez’s earlier arguments regarding withdrawal of his plea were not based upon
any alleged breach of the plea agreement.

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