### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 50654 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
ELIAS A. ESTRELLA , Defendant

- Appellant

Appeal s from the United States District Court for the Western District of Texas USDC No. 7:13

- CR

- 222

- 2

Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges. PER CURIAM: * Elias A. Estrella pleaded guilty pursuant to a plea agreement to one count of possession with intent to distribute five kilograms or more of cocaine and was sentenced to 240 months o f imprisonment and 10 years of supervised release. The appeal waiver provision i n Estrella’s plea agreement does not bar this appeal because the Government has not sought to enforce it. See United States v. Story , 439 F.3d 226, 231 (5th Cir. 2006).

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 3, 2015 Lyle W. Cayce Clerk Case: 14-50654 Document: 00512955186 Page: 1 Date Filed: 03/03/2015No. 14

- 50654

Estrella argues that the district court abused its discretion in denying his motion to withdraw his guilty plea. He cites his repeated claims of actual innocence ; the failure of the Government to substantiate its claim of prejudice resultin g from a withdr awal of the plea; the district court’s erroneous reliance on a busy docket when finding that a withdrawal would inconvenience the court and waste judicial resources; and ineffective assistance of counsel which contributed to an unknowing and involuntary pl ea

. Once the district court accepts a defendant’s guilty plea, the defendant has no absolute righ t to withdraw his guilty plea. United States v. Grant , 117 F.3d 788, 789 (5th Cir. 1997). A district court may grant a motion to withdraw a guilty plea upon a showing of “a fair and just reason for requesting the withdrawal.” F ED

. R. C RIM

. P. 11 (d)(2)(B). This court reviews the district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Urias

- Mar r ufo , 744 F.3d 361 , 364 (5th Cir. 2014)

. In determining whether a district court has abused its discretion in denying withdrawal, this court traditionally employs the seven factor test set out in United States v. Carr , 740 F.2d 339, 343

- 344 (5th Cir. 1984), considering whet her (1) the defendant has asserted his innocence; (2) the Government would suffer prejudice if the motion were granted; (3) the defendant has delayed in filing his motion; (4) the withdrawal would substantially inconvenience the court; (5) the defendant re ceived the close assistance of counsel; (6) the original plea was knowing and voluntary; and (7) the withdrawal w ould waste judicial resources. These factors are not exclusive, and, ultimately, this court makes its determination based on the totality of t he circumstances. Id . at 344. The district court did not abuse its discretion in denying Estrella’s motion to withdraw his guilty plea. Estrella’s assertion of innocence, without

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identification of any specific evidence to substantiate his claim, was ins ufficient to demonstrate that the district court erred in denying his motion to withdraw his guilty plea. See United States v. Clark , 931 F.2d 292, 294

- 95 (5th Cir. 1991 ). In addition, the district court correctly determined that Estrella delayed in fili ng his motion to withdraw his guilty plea given that he waited two mo nths after his rearraignment and he followed with two subsequent withdrawals and filings of the same motion. See United States v. London , 568 F.3d 553, 563

- 64 (5th Cir. 2009); Carr , 740 F.2d at 345

. Although Estrella contends that the passage of time has not impeded the Government’s ability to bring him to trial , “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. United States v. McKnight , 570 F.3d 641, 649 (5th Cir. 2009). In light of its extremely busy d ocket, the district court correctly determined that granting Estrella’s motion to withdraw would inconvenience the district court and waste judicial resources. See McKnight , 570 F.3d at 650

. T he district court also did not err when it found that Estrella had close assistance of several attorneys during the pendency of his crimi nal case. Finally, hi s statements at the rearraignment hearing show that he
enter ed a knowing and voluntary plea. Estrella’s declarations are entitled to a strong presumption of v erity. See Blackledge v. Allison , 431 U.S. 63, 74 (197 7). Based on the totality of the Carr factors, the district court did not abuse its discretion when it denied Estrella’s motion to withdraw his guilty plea. See
Urias

- Mar r ufo , 744 F.3d at 364. AFFIR MED.

3 Case: 14-50654 Document: 00512955186 Page: 3 Date Filed: 03/03/2015