IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2008
No. 07-50852
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GILDARDO ROSALES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1182-3
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gildardo Rosales, pursuant to a written agreement, pleaded guilty to
conspiracy to possess with intent to distribute 1000 kilograms or more of
marijuana and five kilograms or more of cocaine. The district court sentenced
Rosales to 262 months in prison to be followed by five years of supervised
release. Rosales appeals his conviction, asserting that the trial court erred in
denying his motion to withdraw his guilty plea.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50852
First, Rosales’s appellate counsel informed this court of a potential conflict
in representation under Rule 1.06(b)(2) of the TEXAS DISCIPLINARY RULES OF
PROFESSIONAL CONDUCT. However, continued representation is appropriate
because Rosales has been adequately informed of the potential conflict and has
waived his right to conflict free counsel. See TEX. ST. RPC RULE 106(c).
This court reviews the denial of a motion to withdraw for abuse of
discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). There is
no absolute right to withdraw a guilty plea, and the defendant bears the burden
to establish the “fair and just reason” for withdrawal. Id. at 370. In determining
whether the defendant has met this standard, this court reviews seven factors:
(1) whether the defendant has asserted his innocence, (2) whether withdrawal
would prejudice the government, (3) whether the defendant delayed in filing the
withdrawal motion, (4) whether withdrawal would inconvenience the court,
(5) whether close assistance of counsel was available, (6) whether the plea was
knowing and voluntary, and (7) whether withdrawal would waste judicial
resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)). If
applicable, the court should also take into account the reasons why a defendant
delayed in making his withdrawal motion. Id. at 344. In applying these factors,
courts are to consider the totality of the circumstances. Id.
The district court found that the Government would not suffer prejudice
and that the withdrawal of the guilty plea would neither substantially
inconvenience the court nor waste judicial resources, thus, weighing in favor of
Rosales. However, Rosales has not shown that the district court abused its
discretion in finding that the other four Carr factors did not weigh in his favor.
First, Rosales did not assert his innocence, but merely objected to the
quantity of drugs attributed to him for sentencing purposes. See United States
v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). Secondly, although Rosales
demonstrated that counsel’s opinion as to his potential sentence proved to be
incorrect, he has not shown that he was deprived of counsel’s close assistance.
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No. 07-50852
See United States v. Clark, 931 F.2d 292, 295 (5th Cir. 1991). In addition,
because Rosales was aware of his minimum and maximum potential sentences
and understood the elements of the offense as charged, he also has not
established that his guilty plea was not knowing or voluntary. See United States
v. Brown, 328 F.3d 787, 789 (5th Cir. 2003); United States v. Young, 981 F.2d
180, 184 (5th Cir. 1992). Rosales also has not provided adequate reasons for the
delay in filing his motion. See United States v. Benavides, 793 F.2d 612, 617-18
(5th Cir. 1986).
Accordingly, Rosales has not demonstrated a fair and just reason for the
withdrawal of his guilty plea and the judgment of the district court is
AFFIRMED.
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