IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51093
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-548-1-DB
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August 23, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges
PER CURIAM:*
John Gomez appeals his guilty-plea conviction and sentence
for conspiracy to possess with intent to distribute marijuana, in
violation of 21 U.S.C. §§ 846 and 841(a)(1). Gomez asserts that
the district court erred in denying his pre-sentencing motion to
withdraw his guilty plea and in refusing to exclude a prior
conviction from consideration during sentencing.
This court reviews the denial of a Rule 32(e) motion for an
abuse of discretion. See United States v. Grant, 117 F.3d 788,
789 (5th Cir. 1997). The district court may grant a motion to
*
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that this opinion should not be published and is not precedent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.
No. 99-51093
-2-
withdraw a guilty plea before a defendant is sentenced if the
defendant shows “any fair and just reason.” Fed. R. Crim. P.
32(e); United States v. Brewster, 137 F.3d 853, 857 (5th Cir.
1998)(outlining seven relevant factors to review under Rule
32(e)).
Gomez’s main contention is that his guilty plea was not
knowing or voluntary because he was unaware of the applicability
of the career offender enhancement provision of the United States
Sentencing Guidelines, § 4B1.1, to his case. Gomez’s argument is
foreclosed by our decision in United States v. Pearson, 910 F.2d
221, 222-23 (5th Cir. 1990), wherein we held that the failure of
the district court to advise a defendant of the applicability of
§ 4B1.1 prior to the entry of the defendant’s guilty plea did not
render the plea involuntary. The remaining factors we consider
under Rule 32(e) also do not favor withdrawal of Gomez’s guilty
plea.
Considering the totality of the circumstances, Gomez did not
establish a fair and just reason for withdrawing his guilty plea.
See Fed. R. Crim. P. 32(e); Brewster, 137 F.3d at 857-58. The
district court did not abuse its discretion in denying Gomez’s
motion to withdraw his guilty plea. Furthermore, the district
court did not abuse its discretion in denying Gomez’s motion to
exclude his 1979 conviction from consideration at sentencing.
United States v. Bentley, 875 F.2d 1114, 1118 (5th Cir. 1989).
Gomez’s conviction and sentence are
AFFIRMED.