     Case: 12-50036       Document: 00512112839         Page: 1     Date Filed: 01/15/2013




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

                                                                            FILED
                                                                         January 15, 2013
                                     No. 12-50036
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

JUAN GONZALEZ-ARCHULETA,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-1235-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Gonzalez-Archuleta (Gonzalez) was sentenced to concurrent terms
of 60 months in prison after pleading guilty to importation of more than 100
kilograms of marijuana and conspiracy to possess more than 100 kilograms of
marijuana with intent to distribute. He now appeals the denial of his motion to
withdraw his plea.
       In determining whether the defendant has established a fair and just
reason for withdrawing a guilty plea, this circuit considers several factors, set

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50036

forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The
determination is based on the totality of the circumstances, and the district court
is not required to make findings on each factor. United States v. Powell, 354
F.3d 362, 370 (5th Cir. 2003). We bear in mind that “solemn declarations in
open court carry a strong presumption of verity,” United States v. McKnight, 570
F.3d 641, 649 (5th Cir. 2009) (internal quotation marks omitted), and a
defendant ordinarily may not refute testimony given under oath at a plea
hearing, United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). We
review the denial of the motion for an abuse of discretion. See Powell, 354 F.3d
at 370.
      With respect to the first factor, assertion of innocence, Gonzalez’s
unsupported claims that he did not know about the marijuana do not weigh in
favor of permitting withdrawal, particularly in light of his sworn in-court
admissions to the contrary. See United States v. Clark, 931 F.2d 292, 294-95
(5th Cir. 1991). The third factor, Gonzalez’s delay in filing his motion, further
supports denial of the motion as he waited until two months after pleading
guilty and two weeks after the presentence report was prepared. See United
States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994); United States v. Carr, 740
F.2d 339, 344 (5th Cir. 1984).
      The record also indicates that he had close assistance of counsel; thus, the
fifth factor also weighs in favor of denying the motion. See United States v.
Benavides, 793 F.2d 612, 613-14, 617 (5th Cir. 1986). Gonzalez’s attorney,
Russell Aboud, negotiated a favorable plea agreement, which resulted in
downward adjustments for acceptance of responsibility and for Gonzalez’s minor
role. Before Aboud took over, Gonzalez had the assistance of a federal public
defender, who represented him in the pre-plea stages, including at a preliminary
detention hearing. Although Aboud withdrew, citing a conflict with Gonzalez,
the record does not suggest that this conflict affected Aboud’s representation
regarding the plea.

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                                 No. 12-50036

      As for the knowing and voluntary nature of the plea, factor six, the
rearraignment transcript shows that the plea was knowing, and Gonzalez offers
no argument to the contrary. See United States v. Hernandez, 234 F.3d 252, 255
& n.3 (5th Cir. 2000). With respect to voluntariness, although Gonzalez asserts
that he felt coerced into admitting his culpability during interrogation, his
uncorroborated denials are insufficient to rebut his sworn statements at
rearraignment that nobody had coerced, threatened, or intimidated him, and
that he was guilty. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.
1998).
      There is no record or determination by the court regarding whether
withdrawal would cause prejudice to the Government, create inconvenience for
the court, or waste judicial resources—the second, fourth, and seventh factors,
respectively. These considerations have little weight. See United States v.
McKnight, 570 F.3d 641, 649-50 (5th Cir. 2009).
      Finally, Gonzalez contends in his statement of issues and in a single
conclusional statement that the Government breached the plea agreement, but
he provides no argument in the body of his brief. Thus, he has abandoned this
issue. See United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.
1991).
      Given the totality of the circumstances, we discern no abuse of discretion.
The judgment is AFFIRMED.




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