IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10508
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROGELIO RAMIREZ-MENDOZA
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-232-1
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January 15, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Rogelio Ramirez-Mendoza appeals the district court’s denial
of a motion to withdraw his guilty plea to a violation of
8 U.S.C. § 1326. Ramirez-Mendoza contends that the district
court applied an erroneous standard and abused its discretion.
Ramirez-Mendoza asserts that the district court focused on his
actual innocence and on the validity of documents that he
provided in support of his contention that he had discovered a
defense to the 8 U.S.C. § 1326 prosecution after entry of the
plea. Ramirez-Mendoza contends that the United States v. Carr,
*
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that this opinion should not be published and is not precedent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. 01-10508
-2-
740 F.2d 339, 343-44 (5th Cir. 1984), factors weigh in favor of
granting the motion to withdraw.
The district court may grant a motion to withdraw a plea
filed prior to sentencing if the defendant shows “any fair and
just reason.” Fed. R. Crim. P. 32(e). We review the district
court’s denial of a motion to withdraw a plea for an abuse of
discretion. United States v. Brewster, 137 F.3d 853, 857 (5th
Cir. 1998).
In its evaluation of a motion to withdraw a plea, the
district court should consider the defendant’s assertion of
innocence; the prejudice to the Government; the defendant’s delay
in filing the motion; the inconvenience to the court; the close
assistance of counsel; the knowing and voluntary nature of the
plea; and the potential waste of judicial resources. Id. (citing
Carr, 740 F.2d at 343-44). The absence of express findings on
each factor does not establish an abuse of discretion. United
States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). No single
factor or combination mandates a particular result; the decision
is based on the totality of the circumstances. Id. A claim of
innocence does not alone warrant the withdrawal of a guilty plea.
Carr, 740 F.2d at 344.
Ramirez-Mendoza based his claim of innocence and his
assertion that his plea was unknowing and involuntary on the
strength of his potential defense to the 8 U.S.C. § 1326 offense.
The district court did not apply an erroneous standard by
evaluating the viability of Ramirez-Mendoza’s asserted defense.
See Carr, 740 F.2d at 343-47. The district court’s findings are
No. 01-10508
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supported by the record and are not clearly erroneous. Millard
v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987). Ramirez-
Mendoza’s belief that he had obtained consent to reapply for
admission to the United States is not a defense recognized by
law. United States v. Asibor, 109 F.3d 1023, 1036 (5th Cir.
1997). The district court did not abuse its discretion by
denying Ramirez-Mendoza’s motion to withdraw the guilty plea.
Badger, 925 F.2d at 104; Carr, 740 F.2d at 343-44. Accordingly,
the judgment of the district court is AFFIRMED.