### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-50036 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. JUAN GONZALEZ-ARCHULETA, Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-1235-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Juan Gonzalez-Archuleta (Gonzalez) was sentenced to concurrent terms of 60 months in prison after pleading guilty to importation of more than 100 kilograms of marijuana and conspiracy to possess more than 100 kilograms o f marijuana with intent to distribute. He now appeals the denial of his motion to withdraw his plea. In determining whether the defendant has established a fair and just

reason for withdrawing a guil ty p l e a , this circuit considers several factors, set 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 Janu ary15 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this 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: 12-50036 Document: 00512112839 Page: 1 Date Filed: 01/15/2013No. 12-50036

forth in United States v. Carr , 740 F.2d 339, 343-44 ( 5 th C ir . 1984). The determination is based on th e tot ality of the circumstances, and the district court is not required to make findings on each factor. United States v. P o w e l l , 354 F

. 3 d 3 62, 370 (5th Cir. 2003). We bear in mind that “solemn declaration s i n open court carry a strong presumption of verity,” United States v. McKnight , 570 F.3d 641, 649 (5th Cir. 2009) (internal quotation marks omitted), and a defendant ordinarily m ay n o t refute testimony given under oath at a plea hearing, United States v. Cervantes , 132 F.3d 1106, 1110 ( 5 th C ir . 1 998). We review the denial of the motion for an abuse of discretion. See Powell , 354 F.3d at 370. With respect to the first factor, assertion of innocence, Gonzalez’s unsupported claims that he did not know about the marijuana do not weigh in favor of permitting withdrawal, particularly in light of his sworn in-court admissions to the contrary. See United States v. Clark , 931 F.2d 2 9 2 , 2 9 4

- 9 5 (5th Cir. 1991). The third factor, Gonzalez’s delay in filing his motion, further

su p p o rt s d e nial of the motion as he waited until two months after pleading gu ilty and two weeks after the presentence report was prepared. Se e U n i t e d States v. Thomas , 13 F.3d 151, 153 (5th Cir. 1994) ; United States v. Carr , 740 F.2d 339, 344 (5th Cir. 1984). The record also indicates that he had close assistance of counsel; thus, the fifth factor also weighs in favor of denying the moti o n . Se e United States v. Benavides , 793 F.2d 612, 613-14, 617 (5th Cir. 1986). Gonzalez’ s attorney, Russell Aboud, negotiated a favorable p l e a agreement, which resulted in downward a d

j u stments for acceptance of responsibility and for Gonzalez’s minor role. Before Aboud took over, Gonzalez had the assistance of a federal public defender, who represented him in the pre-plea stages, including at a preliminary detention hearing. Although Aboud withdrew, citing a conflict with Gonzalez, the r ecord does not suggest that this conflict affected Aboud’s representation regarding the plea.
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As fo r th e k n o wing and voluntary nature of the plea, factor six, the rearraignment transcript shows that the plea was knowing, and Gonzalez offers

no argument to the contrary. See United States v. Hernandez , 234 F.3d 252, 255 & n.3 (5th Cir. 2000). With respect to voluntariness, although Gonzalez asserts that he felt coerced into admitting his culpability during interrogation, his uncorroborated denials are insufficient to r eb ut his sworn statements at rearraignment that nobody had c o e rced, threatened, or intimidated him, and that he was guilty. See United States v. Cervantes , 132 F.3d 1106, 1110 (5th Cir. 1998). The r e is no record or determination by the court regarding whether withdrawal would cause prejudice to the Government, create inconvenience for the court, or waste judicial resources—the second, fourth, and seventh factors, respectively. These co n siderations have little weight. See United States v. McKnight , 570 F.3d 641, 649-50 (5th Cir. 2 009). Finally, Gonz al ez contends in his statement of issues and in a single conclusional statement that the Government breached the plea agreement, but he provides no argument in the body of his brief. Thus, he has abandoned this issue. See U

n i t ed States v. Valdiosera-Godinez , 932 F.2d 1093, 1099 (5th Cir. 1991). Given the totality of the circumstances, we discern no abuse of discretion. The judgment is AFFIRMED.

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