IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 22, 2009
No. 08-50552
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE LUIS LOPEZ-ALFONSO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:07-CR-1890-1
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jorge Luis Lopez-Alfonso (Lopez) pleaded guilty pursuant to a written plea
agreement to knowingly and intentionally importing 50 kilograms or more of
marijuana. Over four months after the district court accepted Lopez’s plea, he
moved to withdraw his guilty plea so that he could plead guilty to the
indictment, which also charged Lopez with possession with intent to distribute
50 kilograms or more of marijuana. The district court denied the motion.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50552
Lopez argues that the district court erred in denying his motion to
withdraw his guilty plea. We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States v. Powell, 354 F.3d
362, 370 (5th Cir. 2003). Lopez concedes that he has not asserted his innocence,
and he did not file the motion until over four months after the date that the plea
agreement was signed and the rearraignment was held. Lopez had the
assistance of counsel during his guilty plea proceedings, as Lopez acknowledged
in open court during his rearraignment. Lopez has not identified any deviation
from Federal Rule of Criminal Procedure 11 by the district court or otherwise
challenged the validity of his guilty plea. See Boykin v. Alabama, 395 U.S. 238,
244 (1969); United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
Finally, withdrawal of Lopez’s plea would likely have involved the district
court in subsequent proceedings, but, on the other hand, withdrawal could have
saved judicial resources from being expended on an otherwise likely 28 U.S.C.
§ 2255 motion. Because all of the relevant factors weigh in favor of the
Government, except for two that are more or less in equipoise, Lopez has not
established that the district court abused his discretion in denying his motion
to withdraw his plea. See Powell, 354 F.3d at 370; see also United States v. Carr,
740 F.2d 339, 343-44 (5th Cir.1984).
As part of his plea agreement, Lopez waived his right to appeal his
sentence on any ground. Lopez argues that his appeal waiver is unenforceable
due to ineffective assistance by his first trial attorney. A defendant may avoid
a waiver of appeal on the grounds that the waiver or guilty plea itself was
tainted by ineffective assistance of counsel. United States v. White, 307 F.3d
336, 339, 343 (5th Cir. 2002). However, because Lopez did not raise his
ineffective assistance of counsel claim before the district court, we decline to
consider it without prejudice to any right Lopez may have to raise it in a
subsequent proceeding. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.),
cert. denied, 129 S. Ct. 159 (2008).
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No. 08-50552
Lopez concedes that his challenge to the reasonableness of his sentence
falls within the scope of the waiver of appeal in his plea agreement, and he
presents no challenge to the enforceability of the waiver other than the
ineffective assistance claim addressed above. Accordingly, we deny his
sentencing claim as barred by the appeal waiver.
AFFIRMED.
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