Case: 17-15143 Date Filed: 09/19/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15143
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00193-SCJ-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CIPRIANO VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 19, 2018)
Before ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.
PER CURIAM:
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Cipriano Vargas appeals the district court’s denial of his request to withdraw
his guilty plea.
Vargas pleaded guilty pursuant to a written plea agreement to one count of
conspiracy to possess with intent to distribute methamphetamine. But that was
only after he had declined to change his plea at two earlier hearings scheduled for
that purpose, fired his retained counsel, had the district court appoint new counsel,
and asked the court to cancel a third would-be change of plea hearing. Before
accepting Vargas’ guilty plea, the court conducted a thorough plea colloquy in
compliance with Rule 11 of the Federal Rules of Criminal Procedure. During that
colloquy and while under oath, Vargas affirmed that he fully understood his plea
agreement and the rights he was waiving, that he was guilty of the charged
conduct, and that he was pleading guilty knowingly and voluntarily.
Vargas’ sentence hearing started two months later, but the district court
continued the hearing for one week because Vargas asked for more time to review
the presentence investigation report with his appointed counsel. When the hearing
resumed, defense counsel explained to the court that Vargas was asserting that he
was innocent of the drug conspiracy and wanted to withdraw his guilty plea. The
court denied Vargas’ request, finding that it was just an attempt to delay
sentencing. The court then sentenced him to fifteen years imprisonment followed
by ten years of supervised release.
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“We review the denial of a request to withdraw a guilty plea for abuse of
discretion. There is no abuse of discretion unless the denial is arbitrary or
unreasonable.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006)
(quotation marks and citations omitted). “A district court abuses its discretion if it
fails to apply the proper legal standard or to follow proper procedures in making
the determination, or makes findings of fact that are clearly erroneous.” United
States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (quotation marks
omitted).
A defendant may withdraw a guilty plea after the district court has accepted
it, but before sentencing, if “the defendant can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “In determining
whether the defendant has met his burden to show a fair and just reason, a district
court may consider the totality of the circumstances surrounding the plea.” Brehm,
442 F.3d at 1298 (quotation marks omitted). “Factors analyzed include
(1) whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and
(4) whether the government would be prejudiced if the defendant were allowed to
withdraw his plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988)
(citation omitted).
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Vargas contends that his guilty plea was not knowing and voluntary, as
demonstrated by his reluctance to plead guilty and his assertion of innocence at the
sentence hearing. But he did plead guilty. And he “swore during the plea colloquy
that he committed the alleged offense, understood the possible consequences of his
guilty plea, and waived his right to trial.” United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994) (quotation marks omitted). The district court did not clearly
err by crediting those sworn statements. See id. (“There is a strong presumption
that the statements made during the colloquy are true.”). Nor did it clearly err by
discrediting Vargas’ belated assertion of innocence and finding, based on his past
conduct, that his request to withdraw his guilty plea was merely an attempt to delay
sentencing. See Buckles, 843 F.3d at 472 (“The good faith, credibility and weight
of a defendant’s assertions in support of [a request to withdraw a guilty plea] are
issues for the trial court to decide.”). Delaying sentencing is not a fair and just
reason to withdraw a guilty plea. The district court did not abuse its discretion by
denying Vargas’ request.
AFFIRMED.
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