IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41014

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TONY BLANCARTE, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:09-CR-23-5

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Tony Blancarte, Jr., and 17 others were charged in one count of a

superseding indictment with conspiring to possess with intent to distribute five

kilograms or more of a mixture or substance containing cocaine “in the Eastern

District of Texas and elsewhere,” in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Pursuant to a written plea agreement, Blancarte pleaded guilty as charged.

Three months after the district court accepted his guilty plea, Blancarte moved

to withdraw it. Following a hearing, the magistrate judge recommended that the

United States Court of Appeals

Fifth Circuit

F I L E D

June 16, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-41014

motion be denied. Over Blancarte’s objections, the district court adopted the

magistrate judge’s recommendation and denied the motion. The district court

sentenced Blancarte within the advisory guidelines range to 169 months of

imprisonment, to be followed by five years of supervised release.

We review the district court’s denial of a motion to withdraw a guilty plea

for abuse of discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir.

2009). Because Blancarte did not seek to withdraw his guilty plea before the

district court accepted it, he had no absolute right to withdraw his plea. See

United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008); FED. R. CRIM. P. 11(d).

Before sentencing, a defendant may withdraw his guilty plea that the district

court has accepted if “the defendant can show a fair and just reason for

requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). “The burden of

establishing a fair and just reason for withdrawing a guilty plea remains at all

times on the defendant.” United States v. Still, 102 F.3d 118, 124 (5th Cir.

1996).

In reviewing the denial of a motion to withdraw a guilty plea, we consider

whether (1) the defendant asserted his innocence, (2) withdrawal would

prejudice the government, (3) the defendant delayed in filing the withdrawal

motion, (4) withdrawal would inconvenience the court, (5) close assistance of

counsel was available to the defendant, (6) the plea was knowing and voluntary,

and (7) withdrawal would waste judicial resources. United States v. Carr, 740

F.2d 339, 343-44 (5th Cir. 1984). Because we must consider the totality of the

circumstances in applying these factors, id. at 344, “[n]o single factor or

combination of factors mandates a particular result,” United States v. Badger,

925 F.2d 101, 104 (5th Cir. 1991).

Based on the totality of the circumstances, Blancarte failed, both in the

court below and in this court, to carry his burden of establishing a fair and just

reason for the withdrawal of his guilty plea. See Still, 102 F.3d at 124. Our

review of the record, Blancarte’s arguments, and the district court’s

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consideration of the Carr factors shows that the district court did not abuse its

discretion in denying Blancarte’s motion to withdraw his guilty plea.

The judgment of the district court is AFFIRMED.

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