F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 26, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff–Appellee, No. 05-2285
v. (Case No. 04-CR-1844-BB)
LEROY CASTILLO, (D .N.M .)
Defendant–Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f). The case is therefore ordered
submitted without oral argument.
On April 6, 2005, Appellant Leroy Castillo pleaded guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 992(g)(1) and 924(a)(2).
Almost five months later, on August 29, 2005, Appellant filed a motion to
withdraw his guilty plea and proceed to trial. The court denied the motion and
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
sentenced Appellant to a seventy-eight-month term of imprisonment, one month
higher than the minimum recommended under the Sentencing Guidelines. On
appeal, Appellant argues that the district court erred in denying his motion to
withdraw his guilty plea and that his seventy-eight-month sentence is
unreasonable.
W e review the denial of a defendant’s motion to withdraw a guilty plea for
abuse of discretion, and we will not reverse unless the district court “acted
unjustly or unfairly.” United States v. Sandoval, 390 F.3d 1294, 1297-98 (10th
Cir. 2000) (internal quotation omitted). W e consider the following seven factors
to determine whether a defendant has shown a “fair and just reason” why he
should have been allowed to withdraw his guilty plea: “(1) defendant’s assertion
of innocence; (2) resulting prejudice to the government; (3) defendant’s delay in
filing the w ithdraw al motion; (4) inconvenience to the court; (5) defendant’s
assistance of counsel; (6) knowledge and voluntariness of the plea; and (7)
resulting waste of judicial resources.” United States v. Graves, 106 F.3d 342, 343
(10th Cir. 1997). “A defendant’s dissatisfaction with the length of his sentence
generally is insufficient reason to withdraw a plea.” United States v. Elias, 937
F.2d 1514, 1520 (10th Cir. 1991).
After a review of the parties’ briefs and the record in appeal, we are not
persuaded that these seven factors warrant withdrawal. It is clear from a review
of the transcript that Appellant’s motion to withdraw his guilty plea was
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motivated by his dissatisfaction with the anticipated length of his sentence. In
addition, despite asserting his innocence, Appellant offered no evidence in
support of this conclusory claim. See United States v. Kramer, 168 F.3d 1196,
1200 (10th Cir. 1999) (conclusory statements by the defendant, “absent any other
evidence, [are] insufficient to show that his plea was involuntary”). Appellant did
not file his motion to w ithdraw his plea until two days before the hearing, almost
five months after he had pleaded guilty. See United States v. Carr, 80 F.3d 413,
420 (10th Cir. 1996) (holding that a delay of three months weighed against
granting the defendant’s motion to withdraw his guilty plea). W e note that the
government had quashed its trial subpoenas due to Appellant’s plea, and that the
case, which had already been scheduled for trial on two previous occasions, had
been removed from the trial docket because of the plea. Granting the motion to
withdraw the plea would have required the government to expend additional
resources re-issuing the subpoenas and revisiting the case and would have
required the court to reschedule the case for trial, resulting in disruptions to the
docket and delays in other pending cases. See id. at 420-21; United States v.
Jones, 168 F.3d 1217, 1220-21 (10th Cir. 1999). W e note, also, that Appellant’s
guilty plea was entered knowingly and voluntarily, as demonstrated by the plea
colloquy and conceded by counsel at the sentencing hearing. Nor do we credit
Appellant’s conclusory claim at sentencing of dissatisfaction with an attorney
whom he selected and who, according to his representations at the plea hearing,
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served him competently. See Jones, 168 F.3d at 1221. Therefore, we conclude
that the district court did not abuse its discretion in denying the motion.
Appellant also challenges the length of the sentence he received. After
United States v. Booker, 534 U.S. 220, 261 (2005), we review sentences for
reasonableness. United States v. Lopez-Flores, 444 F.3d 1218, 1220 (10th Cir.
2006). Appellant’s sentence, which was within the properly calculated Guidelines
range, is presumptively reasonable. See United States v. Kristl, 437 F.3d 1050,
1054 (10th Cir. 2006). However, Appellant can rebut the presumption of
reasonableness if he is able to demonstrate “that the sentence is unreasonable
when viewed against the other factors delineated in § 3553(a).” Id.
At the sentencing hearing, the district court considered A ppellant’s request
for a lower sentence and explained its reasons for refusing this request, pointing
out that Appellant had a history of illegal firearms possession and dangerous
criminal conduct. The court found it “appalling” that Appellant was already at
Criminal History Category VI, even though he was only twenty-four years old at
the time of the sentencing (Sent. Tr. at 15), and it stated that there was nothing in
the record indicating that Appellant was entitled to a more lenient sentence. After
a review of the parties’ briefs and the record on appeal, we conclude that the
district court properly considered Appellant’s argument for departure and the §
3553(a) factors before imposing a reasonable sentence near the bottom of the
Guidelines range.
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A FFIR M E D.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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