IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 07-10427
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE ALEJANDRO CORTEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-183-1
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jorge Alejandro Cortez appeals his guilty-plea conviction for possession
with the intent to distribute 50 grams or more of a mixture and substance
containing a detectable amount of methamphetamine. He argues that the
district court abused its discretion in not allowing him to withdraw his plea and
that, notwithstanding the district court’s ruling on his motion to withdraw his
plea, his conviction should be reversed because his plea was not knowing and
voluntary.
*
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should not be published and is not precedent except under the limited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. 07-10427
“A district court’s denial of a motion to withdraw a guilty plea is reviewed
for abuse of discretion.” United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003). When determining whether to allow a defendant to withdraw
his guilty plea, the district court should consider whether: (1) the defendant has
asserted his innocence, (2) withdrawal would prejudice the Government, (3) the
defendant has delayed in filing his withdrawal motion, (4) withdrawal would
substantially inconvenience the court, (5) close assistance of counsel was
available, (6) the original plea was knowing and voluntary, and (7) withdrawal
would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-34
(5th Cir. 1984).
To enter a knowing and intelligent plea, the defendant must have “a
full understanding of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 244 (1969). “[A]s long as the defendant understands the
length of time he might possibly receive, he is fully aware of his plea’s
consequences.” James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). A defendant’s
solemn declarations in open court carry a strong presumption of truth.
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Cortez states that the first, second, and seventh Carr factors “are neutral,
at best.” He also concedes that the third and fourth Carr factors (delay and
inconvenience to the court) weigh against him. Cortez argues, however, that the
fifth and sixth Carr factors weigh in his favor and that the district court
therefore abused its discretion in not allowing him to withdraw his guilty plea.
However, contrary to Cortez’s assertions, the record establishes that the fifth
and sixth Carr factors weigh against him being allowed to withdraw his guilty
plea. Accordingly, the district court did not abuse its discretion in denying
Cortez’s motion to withdraw his plea. See Powell, 354 F.3d at 370. In addition,
Cortez has not shown that his guilty plea was unknowing and involuntary such
that his conviction should be reversed. See James, 56 F.3d at 666.
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No. 07-10427
Cortez avers next that there was not a sufficient factual basis to support
his guilty plea as required by FED. R. CIV. P. 11(f). Cortez’s challenge to the
factual resume is raised for the first time on appeal, and thus, is reviewed for
plain error. See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). Here,
the stipulation of facts and Cortez’s admissions at rearraignment established
that Cortez knowingly orchestrated the delivery of 681 grams of a mixture
containing a detectable amount of methamphetamine. Thus, the evidence was
sufficient to show Cortez’s constructive joint possession of that amount. See
United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). Based upon the
foregoing, the district court’s finding that there was a sufficient factual basis for
Cortez’s guilty plea was not plain error. The judgment of the district court is
AFFIRMED.
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