UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-10570
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO E. RESENDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:95-CR-145-A)
March 17, 1997
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
The issue before this Court is whether the district court
abused its discretion when it denied Defendant/Appellant Ricardo
Enrique Resendez’ motion to withdraw his guilty plea. For the
following reasons, we hold that no error was committed.
In February 1994, a Fort Worth, Texas narcotics officer was
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
contacted by a confidential informant who reported having observed
suspicious activity at and near a business warehouse.
Specifically, the informant reported that: a truck at the warehouse
contained numerous large trash bags which were partially covered by
a tarp; the bags contained large, block-shaped items; and a strong
odor of marijuana emanated from the vehicle.
On March 17, 1994, the same officer was contacted by the
confidential informant who reported numerous vehicles entering and
exiting the warehouse. The officer traveled to the warehouse where
he observed Appellant Resendez and Rogelio Rodriguez Garza exiting
the warehouse. Resendez and Garza entered a truck displaying
Mexico license plates and drove away from the warehouse. The
officer followed.
The truck, driven by Garza, increased its speed and began
driving in an erratic manner. Eventually, the truck stopped in a
parking lot and the passenger attempted to flee. After identifying
himself, the officer detained the two men. Neither man could
produce a legitimate Texas or United States identification.1 The
two men did produce several documents including a “Notice of
Seizure” of $195,335.00 from Marion, Arkansas, and paperwork from
the Roma, Texas, police department indicating that a vehicle and
other items had been seized during a marijuana investigation in
1
A subsequent search of Resendez’ wallet revealed a
temporary Texas driving permit bearing Resendez’ full name, birth
date, and address in Forth Worth.
2
Roma.
During a valid interrogation, Garza informed the officer that
the warehouse contained a large quantity of marijuana. A search
warrant was issued for the warehouse and approximately 450 pounds
of marijuana were seized.
Resendez informed the officer that he also had money and
marijuana at his residence. Upon a search of Resendez’ house,
police found approximately 530 pounds of marijuana, $359,688 in
cash. Various firearms were also discovered.
Pursuant to a plea agreement entered on January 12, 1996,
Resendez pleaded guilty to possession with intent to distribute
more than 100 kilograms of marijuana. When Resendez entered his
guilty plea, he was represented by retained counsel, Randy S.
Myers. On January 30, 1996, the district court allowed Resendez to
replace Myers with attorney Jeffrey Allen Denner.
On May 1, 1996, Resendez, through Denner, moved to withdraw
his guilty plea. Resendez contended that when Myers advised him to
plead guilty, Myers was acting under undisclosed conflicts of
interest which tainted his advice to Resendez. Specifically,
Resendez argued that Myers failed to inform Resendez that: (1)
Myers had been served with a grand jury subpoena to produce records
of fee payments made by, or on behalf of, Resendez; (2) Myers was
allegedly representing individuals who could have testified against
Resendez, and against whom Resendez could have testified; and (3)
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Myers was acting under a conflict of interest, as allegedly evinced
by Myers’ failure to file various motions.
The district court conducted a hearing as to Resendez’ motion
to withdraw. After considering the affidavits of Myers and
Resendez, as well as the testimony of various witnesses, the
district court held that no actual conflict of interest had been
demonstrated, and denied Resendez’ motion to withdraw. Claiming
that the district court abused its discretion, Resendez now
appeals.
“A motion to withdraw a guilty plea is committed to the
discretion of the district court and its decision will not be
disturbed absent an abuse of discretion.” United States v. Still,
102 F.3d 118, 123 (5th Cir. 1996); United States v. Benavides, 793
F.2d 612, 616 (5th Cir. 1986). “Upon a showing of a fair and just
reason, a district court may permit a defendant to withdraw a
guilty plea at any time before sentencing.” Id. at 123-24
(internal citations omitted); FED. R. CRIM. P. 32(e).2 “Though Rule
32 is to be construed and applied liberally, there is no absolute
right to withdraw a guilty plea.” Id.
In ruling upon a motion to withdraw a guilty plea, the
2
Rule 32(e) provides, in relevant part: “If a motion to
withdraw a plea of guilty or nolo contendere is made before
sentence is imposed, the court may permit the plea to be
withdrawn if the defendant shows any fair and just reason.” FED.
R. CRIM. P. 32(e).
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district court should consider: (1) whether the defendant has
asserted his innocence; (2) whether withdrawal would prejudice the
government; (3) whether the defendant delayed in filing the motion,
and, if so, the reason for the delay; (4) whether withdrawal would
substantially inconvenience the court; (5) whether close assistance
of counsel was available to the defendant; (6) whether the plea was
knowing and voluntary; and (7) whether withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-344
(5th Cir. 1984); United States v. Hurtado, 846 F.2d 995, 997 (5th
Cir. 1988); Still, 102 F.3d at 124. “However, no single factor or
combination of factors mandates a particular result.” Id. at 124;
United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).
“Instead, the district court should make its determination based on
the totality of the circumstances.” Id. “The burden of
establishing a fair and just reason for withdrawing a guilty plea
remains at all times on the defendant.” Id.
In light of the evidence, we have carefully reviewed the
parties’ briefs, the record, including the district court’s order,
and the relevant case law. We are satisfied that the district
court did not err in finding that no actual conflict of interest
had been demonstrated. Accordingly, the judgment of the district
court is, in all things,
AFFIRMED.
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