     Case: 19-10209       Document: 00515231926         Page: 1     Date Filed: 12/11/2019




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

                                     No. 19-10209
                                                                                   Fifth Circuit

                                                                                 FILED
                                   Summary Calendar                      December 11, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                  Plaintiff - Appellee

v.

JUAN SILVA,

                                                  Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:17-CR-344-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Juan Silva challenges his guilty-plea conviction for conspiracy to possess,
with intent to distribute, a controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. He contends the court abused its discretion in denying his
motion to withdraw his plea.
       As a threshold matter, the Government invokes the appeal waiver in Silva’s
plea agreement. Our court reviews de novo whether such a waiver bars an appeal,
considering: “(1) whether the waiver was knowing and voluntary, and (2) whether

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10209

. . . the waiver applies to the circumstances at issue”. United States v. Harrison,
777 F.3d 227, 233 (5th Cir. 2015) (citations omitted).
      Although he signed an appeal waiver, Silva reserved the right to challenge,
inter alia, the voluntary nature of his guilty plea and claims of ineffective
assistance of counsel. Because Silva’s motion to withdraw was based on claims of
an involuntary guilty plea and deficient performance of counsel, the waiver does
not bar this appeal. See id. at 233–34 & n.26 (citations omitted).
      Regarding the claimed reversible error arising from the denial of Silva’s
motion to withdraw his guilty plea, such denial is reviewed for abuse of discretion.
United States v. Lord, 915 F.3d 1009, 1013 (5th Cir. 2019), cert. denied, 2019 WL
4923393 (U.S. 7 Oct. 2019). “A district court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the evidence.” Id.
at 1013–14 (internal alteration and citation omitted).
      After the court has accepted a guilty plea, but before it imposes sentence,
defendant may withdraw the plea by showing “a fair and just reason for
requesting the withdrawal”. Fed. R. Crim. P. 11(d)(2)(B). In determining whether
that showing has been made, the district court considers the following seven
factors:
      (1) whether the defendant asserted his actual innocence; (2) whether
      withdrawal would prejudice the Government; (3) the extent of the
      delay, if any, in filing the motion to withdraw; (4) whether
      withdrawal would substantially inconvenience the court; (5) whether
      the defendant had the benefit of close assistance of counsel; (6)
      whether the guilty plea was knowing and voluntary; and (7) the
      extent to which withdrawal would waste judicial resources.


Lord, 915 F.3d at 1014 (citing United States v. Carr, 740 F.2d 339, 343–44 (5th
Cir. 1984)). “No single factor or combination of factors mandates a particular
result, and the district court should make its determination based on the totality
of the circumstances.” Id. (internal quotation marks, alteration, and citation
omitted). Although the district court determined Silva’s delay in filing his motion


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                                  No. 19-10209

to withdraw should not count against him, it determined the other factors do.
Considering the relevant factors, the court did not abuse its discretion in denying
Silva’s motion to withdraw his plea.
      At rearraignment, Silva confirmed he understood the charges against him,
stated he had fully discussed the factual resume with his counsel, and agreed with
the facts supporting his guilt.        The court advised Silva concerning the
constitutional rights he was waiving by pleading guilty, advised him about how
the Sentencing Guidelines applied, confirmed there was a factual basis to support
the plea, and reviewed the plea agreement with him.
      The Government contends it would be prejudiced by the passage of time
since Silva’s guilty plea and because it entered plea deals with Silva’s co-
conspirators that did not include agreements to cooperate against Silva. The court
determined it would face inconvenience and waste resources if it tried the case at
this late date. This determination is entitled to substantial deference, because
the court “is in the best position to know the effect that the withdrawal [would
have] on its resources”. Carr, 740 F.2d at 345. Finally, although determining
whether defendant had close assistance of counsel is fact-intensive, such
assistance has been found in similar situations where, inter alia, counsel
negotiated a plea agreement, filed motions, discussed the case with defendant,
explained defendant’s rights and the weight of the evidence, and where defendant
expressed satisfaction with counsel. See United States v. McKnight, 570 F.3d 641,
646–48 (5th Cir. 2009).
      AFFIRMED.




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