* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-10508

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ROGELIO RAMIREZ-MENDOZA

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:00-CR-232-1

--------------------

January 15, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:*

Rogelio Ramirez-Mendoza appeals the district court’s denial

of a motion to withdraw his guilty plea to a violation of

8 U.S.C. § 1326. Ramirez-Mendoza contends that the district

court applied an erroneous standard and abused its discretion. 

Ramirez-Mendoza asserts that the district court focused on his

actual innocence and on the validity of documents that he

provided in support of his contention that he had discovered a

defense to the 8 U.S.C. § 1326 prosecution after entry of the

plea. Ramirez-Mendoza contends that the United States v. Carr,
No. 01-10508

-2-

740 F.2d 339, 343-44 (5th Cir. 1984), factors weigh in favor of

granting the motion to withdraw.

The district court may grant a motion to withdraw a plea

filed prior to sentencing if the defendant shows “any fair and

just reason.” Fed. R. Crim. P. 32(e). We review the district

court’s denial of a motion to withdraw a plea for an abuse of

discretion. United States v. Brewster, 137 F.3d 853, 857 (5th

Cir. 1998).

In its evaluation of a motion to withdraw a plea, the

district court should consider the defendant’s assertion of

innocence; the prejudice to the Government; the defendant’s delay

in filing the motion; the inconvenience to the court; the close

assistance of counsel; the knowing and voluntary nature of the

plea; and the potential waste of judicial resources. Id. (citing

Carr, 740 F.2d at 343-44). The absence of express findings on

each factor does not establish an abuse of discretion. United

States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). No single

factor or combination mandates a particular result; the decision

is based on the totality of the circumstances. Id. A claim of

innocence does not alone warrant the withdrawal of a guilty plea. 

Carr, 740 F.2d at 344.

Ramirez-Mendoza based his claim of innocence and his

assertion that his plea was unknowing and involuntary on the

strength of his potential defense to the 8 U.S.C. § 1326 offense. 

The district court did not apply an erroneous standard by

evaluating the viability of Ramirez-Mendoza’s asserted defense.

See Carr, 740 F.2d at 343-47. The district court’s findings are
No. 01-10508

-3-

supported by the record and are not clearly erroneous. Millard

v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir. 1987). RamirezMendoza’s belief that he had obtained consent to reapply for

admission to the United States is not a defense recognized by

law. United States v. Asibor, 109 F.3d 1023, 1036 (5th Cir.

1997). The district court did not abuse its discretion by

denying Ramirez-Mendoza’s motion to withdraw the guilty plea. 

Badger, 925 F.2d at 104; Carr, 740 F.2d at 343-44. Accordingly,

the judgment of the district court is AFFIRMED.