     Case: 13-40913      Document: 00512633460         Page: 1    Date Filed: 05/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 13-40913                                   FILED
                                  Summary Calendar                             May 16, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO BAHENA-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:12-CR-7


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Roberto Bahena-Garcia pleaded guilty pursuant to a plea agreement to
one count of conspiracy to distribute and to possess with intent to distribute
1,000 or more marijuana plants. He was sentenced to the statutory minimum
sentence of 120 months of imprisonment and five years of supervised release.
The district court denied Bahena-Garcia’s motion to withdraw his guilty plea.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40913     Document: 00512633460     Page: 2   Date Filed: 05/16/2014


                                  No. 13-40913

      Bahena-Garcia contends that the district court abused its discretion by
denying his motion to withdraw and by failing to hold an evidentiary hearing
on that motion. He maintains that his plea was not knowing and voluntary
because his initial attorney did not correctly advise him about his sentencing
exposure and did not inform him about the requisite proof for a dismissed count
(i.e., an offense under 18 U.S.C. § 924) and a sentencing enhancement to which
the parties stipulated in the plea agreement (i.e., a two-level increase pursuant
to U.S.S.G. § 2D1.1(b)(1)). Bahena-Garcia further contends that he did not
inordinately delay in filing his motion to withdraw; that the Government would
not be substantially prejudiced by withdrawal of his plea; and that withdrawal
of his plea would not significantly inconvenience the district court or waste an
unusual amount of judicial resources. He admits that he has not asserted his
innocence. We need not determine whether the appellate waiver provision in
Bahena-Garcia’s plea agreement bars this appeal because the Government has
not sought to enforce the waiver. See United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006).
      We review the district court’s decision to deny a motion to withdraw for
abuse of discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir.
2009). A review of the record, Bahena-Garcia’s arguments, and the factors
listed in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), establishes
that the district court did not abuse its discretion in denying Bahena-Garcia’s
motion. See id. As Bahena-Garcia did not allege sufficient facts to justify relief
on his claim, the district court did not abuse its discretion by not holding an
evidentiary hearing before denying the motion. See United States v. Powell,
354 F.3d 362, 370 (5th Cir. 2003).
      AFFIRMED.




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