* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES of AMERICA,

Plaintiff - Appellee,
v. ELVIS ROBERT SEDILLO,

Defendant - Appellant No. 96-2128 (D. Ct. No. CR-95-330-JC) (D. N. Mexico)

ORDER AND JUDGMENT *
Before TACHA , BALDOCK , and LUCERO , Circuit Judges. After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument. This appeal is from an order of the district court denying defendant’s motion to withdraw his guilty plea following his in dictment for crimes related to his involvement in a carjacking that resulted in th e death of Patricia Tafoya, a 15-- 2 -

year-old girl. Sedillo was one of three persons wh om the grand jury indicted for involvement in the carjacking. Defendant was the t riggerman. Trial was set for the three co-defendants on February 20, 1996. On the day of trial, all three entered guilty pleas. Sedillo pleaded guilty to ca rjacking resulting in death and admitted that he shot and killed Patricia. There i s no question that his plea was properly entered under Federal Rule of Criminal Pro cedure 11(e)(1)(C). The trial court set sentencing for May 9, 1996. On that day, defendant orally moved to withdraw his plea. The court sched uled a hearing for May 20, 1996 to consider the motion. On May 14, 1996, defe ndant filed a written motion to withdraw his plea. On May 20, 1996, the distric t court held the hearing to consider defendant’s motion. The court denied the motion and sentenced defendant to life imprisonment under the United States Sentencing Guidelines. Defendant appeals that denial. He offers no new ar guments on appeal but renews those arguments presented in his written motion fil ed May 14, 1996. We review a district court’s denial of a defendant’ s motion to withdraw a guilty plea for abuse of discretion and will not re verse unless the defendant can demonstrate that the trial court acted unjustly or unfairly. See United States v. Carr , 80 F.3d 413, 419 (10th Cir. 1996). In considerin g a motion to withdraw a guilty plea, the district court must examine seven factors: “(1) whether the defendant has asserted his innocence; (2) prejudice to the government; (3) delay- 3 -

in filing defendant’s motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) whether the plea is know ing and voluntary; and (7) waste of judicial resources.” Id. at 420. Our review of the record, and in particular of the transcript of the May 20, 1996 hearing, reveals that the district court consi dered each of these seven factors before it decided to deny defendant’s motion. The defendant offers no evidence and does not assert that the trial court acted unju stly or unfairly by denying the motion. Accordingly, we conclude that the districtcourt did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea. We AFFIRM the denial of defendant’s motion. ENTERED FOR THE COURT,
Deanell Reece Tacha Circuit Judge