Case: 16-40247      Document: 00513880009         Page: 1    Date Filed: 02/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 16-40247
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                          February 17, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

JUNIOR RAFAEL VARGAS-GUZMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1166-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges
PER CURIAM: *
       Junior Rafael Vargas-Guzman pleaded guilty to illegal reentry of the
United States by a deported alien. On appeal, he challenges the district court’s
denial of his motion to withdraw his guilty plea.
       Once the district court accepts a defendant’s guilty plea, the defendant
has no absolute right to withdraw his plea. FED. R. CRIM. P. 11(d); United
States v. Conroy, 

, 177 (5th Cir. 2009). A district court may grant


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40247     Document: 00513880009     Page: 2   Date Filed: 02/17/2017


                                  No. 16-40247

a motion to withdraw a guilty plea upon a showing of “a fair and just reason
for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In assessing
whether there is a fair and just reason for withdrawal of the guilty plea, the
district court should consider the factors set forth in United States v. Carr, 

, 343-44 (5th Cir. 1984).
      “[T]he burden of establishing a fair and just reason for withdrawing a
guilty plea rests with the defendant.” United States v. Brewster, 

,
858 (5th Cir. 1998). The district court should base its decision on the totality
of the circumstances. United States v. McKnight, 

, 646 (5th Cir.
2009). We review a district court’s order denying a defendant’s motion to
withdraw his guilty plea for an abuse of discretion. 

      Vargas-Guzman made no showing in the district court, and likewise does
not show on appeal, that he likely could have mounted a successful collateral
attack on his deportation proceeding pursuant to 8 U.S.C. § 1326(d), and
therefore his contention that he adequately asserted his innocence based on
the availability of a collateral attack lacks merit.         See United States
v. Mendoza-Mata, 

, 834 (5th Cir. 2003). Our review of the guilty
plea proceeding establishes that Vargas-Guzman had the close assistance of
counsel and that his guilty plea was knowing and voluntary; therefore, these
factors weigh against him. See 

. Further, the factors
listed in Carr “are non-exclusive,” United States v. Urias-Marrufo, 

, 364 (5th Cir. 2014), and the district court did not err in considering
Vargas-Guzman’s failure to demonstrate more than a speculative possibility of
obtaining relief from his deportation order. See 

. The delay of approximately 33 days in filing his pro se motion to withdraw
his plea also weighs against Vargas-Guzman. See 

.




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    Case: 16-40247     Document: 00513880009     Page: 3   Date Filed: 02/17/2017


                                  No. 16-40247

      The district court explicitly determined that conducting a jury trial of
Vargas-Guzman would be a waste of judicial resources. The district court is in
the best position to know the effect that withdrawal of the guilty plea would
have on its resources, and therefore its determination on this factor “is entitled
to substantial deference.” 

. Even if Vargas-Guzman is
correct that his trial would have been a simple matter, the fact that a short
time would be needed for trial “does not necessitate a finding that there is no
inconvenience to the district court.” 

. Finally,
although the Government does not identify any specific prejudice that it would
have suffered from withdrawal of the plea, “the absence of prejudice to the
Government does not necessarily justify reversing the district court’s decision
to deny a motion to withdraw a guilty plea.” 

      In view of the foregoing, considering the totality of the circumstances,
the denial of Vargas-Guzman’s motion to withdraw his guilty plea was not an
abuse of the district court’s discretion.    See 

   Accordingly, the
judgment of the district court is AFFIRMED.




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