Case: 21-40666 Document: 00516402087 Page: 1 Date Filed: 07/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 21, 2022
No. 21-40666
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Francisco Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-1258-2
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Francisco Lopez appeals from his guilty-plea conviction and sentence
for harboring an alien within the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii), (a)(1)(B)(ii). The three issues he presents concern his
guilty plea.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-40666
Despite his admission he had been involved in other alien-smuggling
activities, the Government recommended, pursuant to a plea agreement, that
Lopez relevant conduct be limited to the single alien involved in his count of
conviction. In considering at rearraignment Lopez’ plea, the district court
warned Lopez specifically and repeatedly it was not: bound by that
limitation; or required to allow him to withdraw his guilty plea if his
sentencing exposure exceeded that limit. Lopez maintained his intention to
plead guilty.
At sentencing, the court rejected the Government’s recommendation
and based Lopez’ sentence on both the harboring offense and an alien-
smuggling operation involving a minor driver, recruited by Lopez, who
crashed a vehicle while carrying five illegal aliens, several of whom were
seriously injured. Lopez sought to withdraw his guilty plea during the
sentencing hearing, but the court denied the request. Lopez was sentenced
to, inter alia, a within-Sentencing Guidelines term of 33 months’
imprisonment.
Lopez contends the court abused its discretion by denying his motion
to withdraw his guilty plea. After a guilty plea has been accepted, a district
court may grant a motion to withdraw the plea upon a showing of “a fair and
just reason for requesting the withdrawal”. Fed. R. Crim. P. 11(d)(2)(B)
(considering and accepting a guilty or nolo contendere plea). The burden of
establishing a fair-and-just reason rests, of course, with defendant. E.g.,
United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). As reflected infra,
the “denial of a motion to withdraw a guilty plea is reviewed for abuse of
discretion”. United States v. Lord, 915 F.3d 1009, 1013 (5th Cir. 2019).
Upon our examining the relevant factors and the totality of the
circumstances, the court did not abuse its discretion by denying Lopez’
motion to withdraw. See id. at 1013–15 (stating “district court abuses its
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discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence”); United States v. Carr, 740 F.2d 339, 343–44
(5th Cir. 1984) (identifying factors for considering whether defendant
demonstrated fair-and-just reason for withdrawing guilty plea and stating
court should consider totality of the circumstances when applying those
factors). Notably, Lopez never asserted actual innocence and instead sought
simply to enforce the Government’s recommendation to avoid criminal
liability beyond the count of conviction.
The three-month delay between entry of his guilty plea and the motion
for its withdrawal weighs against him, especially given the lack of any
substantial reasons explaining that delay. See United States v. Landreneau,
967 F.3d 443, 450–51 (5th Cir. 2020) (holding court did not abuse its
discretion by weighing delay factor against defendant), cert. denied, 141 S. Ct.
1443 (2021). And, withdrawal of Lopez’ guilty plea after rearraignment,
preparation and review of the presentence investigation report (PSR), and
commencement of the sentencing hearing certainly would have
inconvenienced the district court. See Lord, 915 F.3d at 1015 (noting
“[w]hen, as here, the district court has already reviewed the PSR and other
materials, a motion to withdraw is disruptive to the trial docket and
inconveniences the court”).
Lopez’ assertions that defense counsel provided incorrect advice as to
his sentencing exposure fail to show he did not receive the close assistance of
counsel. See United States v. McKnight, 570 F.3d 641, 646–48 (5th Cir. 2009)
(holding court did not abuse its discretion by denying motion to withdraw
guilty plea for deprivation of close assistance of counsel based on counsel’s
incorrect advice as to sentencing exposure). Moreover, the court’s repeated
warnings about the non-binding nature of the Government’s
recommendation limiting Lopez’ sentencing exposure contradicts Lopez’
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assertion that his guilty plea was invalid because he was unaware of that exact
consequence.
For the first time on appeal, Lopez contends his guilty plea was invalid
because it was not made knowingly and voluntarily: he believed his sentence
would be based solely on the one alien involved in his count of conviction.
Although the validity of a guilty plea is generally reviewed de novo, an
unpreserved challenge to the plea is reviewed only for plain error. See United
States v. Reasor, 418 F.3d 466, 478 (5th Cir. 2005); United States v. Brown,
328 F.3d 787, 789 (5th Cir. 2003).
Under that standard, Lopez must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct the reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id. In the light of the
court’s repeated warnings, as well as Lopez’ repeated acknowledgment of
those warnings, Lopez has failed to show the requisite clear or obvious error
regarding the validity of his plea.
We decline to consider Lopez’ ineffective-assistance-of-counsel
(IAC) claim because the record is not sufficient to permit a fair evaluation of
its merits. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (“Sixth
Amendment [IAC] claims . . . should not be litigated on direct appeal, unless
they were previously presented to the trial court. It is only in rare cases in
which the record allows a reviewing court to fairly evaluate the merits of the
claim that we will consider such a claim.” (citations omitted)). Needless to
say, our not considering the IAC claim is without prejudice to its being raised
pursuant to 28 U.S.C. § 2255.
AFFIRMED.
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