Case: 22-40176 Document: 00516522886 Page: 1 Date Filed: 10/26/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 26, 2022
No. 22-40176
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rolando Cadena,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-455-3
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Rolando Cadena pleaded guilty to one count of conspiracy to possess
with the intent to distribute 50 grams or more of methamphetamine. Fifteen
months later, Cadena moved to withdraw his plea. The district court denied
*
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opinion should not be published and is not precedent except under the limited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.
Case: 22-40176 Document: 00516522886 Page: 2 Date Filed: 10/26/2022
No. 22-40176
the motion and sentenced Cadena to 235 months of imprisonment and five
years of supervised release.
In his sole issue for appeal, Cadena argues that the district court
abused its discretion by denying his motion to withdraw. We review a district
court’s denial of a defendant’s motion to withdraw his guilty plea for abuse
of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
Federal Rule of Criminal Procedure 11(d) provides that a district court
may permit a criminal defendant to withdraw a guilty plea if “the defendant
can show a fair and just reason for requesting the withdrawal.” There is no
absolute right to withdrawal, United States v. Brewster, 137 F.3d 853, 857 (5th
Cir. 1998), and the burden to show “a fair and just reason” rests with the
defendant, Powell, 354 F.3d at 370. This inquiry requires consideration of the
factors set forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
The district court found that each of the Carr factors weighs against
allowing Cadena to withdraw his guilty plea. On appeal, Cadena fails to show
that this ruling was based on “an error of law or a clearly erroneous
assessment of the evidence.” United States v. McKnight, 570 F.3d 641, 648-
49 (5th Cir. 2009). For this reason, Cadena fails to show that the district
court abused its discretion by denying his motion to withdraw his guilty plea.
In addition, the district court did not err in declining to hold an evidentiary
hearing on the motion to withdraw because Cadena failed to allege
“sufficient facts which, if proven, would justify relief.” Powell, 354 F.3d at
370.
AFFIRMED.
2