### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-20016 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. HERIBERTO PEREZ-PINON Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-534-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Heriberto Perez-Pinon pleaded guilty, pursuant to a written pl e a agreement, to hostage taking and aiding and abetting in violation of 18 U.S.C. §§ 1203(a), 2. Perez-Pinon argues that the district court abused its discretion in denying his motion to withdraw his guilty plea, asserting th a t his guilty plea

was not knowing and voluntary because he thought that he was pleading guilty to a lesser charge of transporting aliens based on counsel’s a s s u r a nces in that regard and that the district court erred by failing to conduct an analysis based U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 29, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat thi s op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-20016 Document: 00512067750 Page: 1 Date Filed: 11/29/2012No. 12-20016

on the factors set forth in United States v. Carr , 740 F.2d 339, 343-44 (5th Cir. 1984) (citing seven factors that a district court should consider when determining whether a defendant may withdraw his guilty plea). This court reviews for abuse of discretion t h e denial of a motion to withdraw a guilty plea. See United States v. Grant , 117 F.3d 788, 789 (5th Cir. 1997). The district cour t m ay gr a n t a motion to withdraw a guilty plea before

a defendant is sentenced if the defendant shows “any fair and just reason.” F E D
. R. C R I M
. P. 11(d)(2)(B). The court makes its determination based on the totality of the circumstances. See United States v. Badger , 925 F.2d 101, 104 ( 5th Cir. 1991). Because Perez-Pinon did not raise in the district court an argument that the district co u rt e rr e d i n failing to conduct a Carr analysis, that argument is reviewed for plain error. See Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009). To show plain error, Perez-Pinon must show a forfeited error that is clear

or obvious and that affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If Perez-Pinon makes such a showing, this court has th e di s c r e t ion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. Even if Perez-Pinon has shown that the district court committed clear or obvious error by failing to conduct a Carr analysis, he cannot show that the error affected his substantial rights because he also cannot show that the error affected the outcome in the district c o u rt. See id. In particular, Perez-Pinon first asserted his innocence over one year after pleading guilty and only after he received the PSR. This court disfavors “eleventh hour” assertions of innocence. See United States v. Lampazianie , 251 F.3d 519, 524-25 (5th Cir. 2001); Grant , 117 F.3d at 790. Further, Perez-Pinon did not move to withdraw his guilty plea until approximately 15 months after pleading guilty, and he has not presented

a go o d reason for the lengthy delay in filing his motion. See United States v. Benavides , 793 F.2d 612, 617-18 (5th Cir. 1986). There is no evidence t hat
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P ere z - Pino n’ s c oun s el w a s inadequate. At rearraignment, Perez-Pinon in dic at e d that he was satisfied with his counsel, and Perez-Pinon’s counsel filed numerous pre-trial motions on Perez-Pinon’s behalf and negotiated the dismissal of seven counts against Perez-Pinon. Finally, the Rule 11 hearing reflects that the plea

was k n owing and voluntary and that Perez-Pinon was admonished on, and pleaded guilty to, hostage taking. Perez-Pinon’s admission that he committed the crime with which he was charged enjoys a strong presumption of truth. See Blackledge v. Allison , 431 U.S. 63, 73 (1977) (“Solemn declarations in open court carry a strong presumption of verity”); United States v. Abre o , 30 F.3d 29, 31 (5th Cir. 1994) (giving great weight to defendant’s statements at plea colloquy). The district court did not abuse its discretion when it denied Perez-Pinon’s motion to withdraw his guilty plea. See Grant , 117 F.3d a t 7 8 9 ; see also Carr , 740 F.2d at 343-44. Thus, Perez-Pinon cannot establish that any error affected the outcome in the district court. See Puckett , 556 U.S. at 135. Ac c o r dingly, the judgment of the district court is AFFIRMED. PerezPinon’s motion to remand for an evidentiary hearing is DENIED.

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