IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41147

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JESUS PLANCARTE-PENALOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:14-CR-9-3

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit 

Judges.

PER CURIAM:*

Jesus Plancarte-Penaloza and three others were indicted for conspiracy 

to distribute and possess with intent to distribute 50 grams or more of actual 

methamphetamine. Plancarte-Penaloza pleaded guilty, pursuant to a written 

plea agreement. The agreement stipulated that 120 months in prison was an 

appropriate sentence, that neither party would seek a variance or departure 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2015

Lyle W. Cayce

Clerk

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No. 14-41147

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from that sentence, and that the plea could be withdrawn if the district court 

did not accept the sentencing agreement. Plancarte-Penaloza moved to 

withdraw his guilty plea because he did not understand the terms of the 

agreement or that he would be sentenced to 120 months in prison. The district 

court held a hearing on the motion to withdraw the plea and denied the motion. 

The district court sentenced Plancarte-Penaloza to 120 months in prison.

On appeal, Plancarte-Penaloza argues that the district court erred in 

denying his motion to withdraw his guilty plea. 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). In determining whether there is a fair and just reason 

for withdrawal, the court should 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 

substantially 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). Plancarte-Penaloza argues that the Carr factors 

should be revisited. “[O]ne panel of this court cannot overrule the decision of 

another panel; such panel decisions may be overruled only by a subsequent 

decision of the Supreme Court or by the Fifth Circuit sitting en banc.” Lowrey 

v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997); United States v. 

Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Accordingly, we will review 

the district court’s denial of Plancarte-Penaloza’s motion to withdraw his guilty 

plea using the Carr factors. 

We review the 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). “[N]o 

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single factor or combination of factors mandates a particular result.” United 

States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). In a hearing on the motion 

to withdraw Plancarte-Penaloza’s guilty plea, the district court addressed each 

of the Carr factors. Our review confirms that the Carr factors support the 

district court’s decision to deny the motion. Plancarte-Penaloza has not shown 

that the district court abused its discretion in finding that he failed to show a 

fair and just reason for withdrawing his plea. See United States v. Still, 102 

F.3d 118, 124 (5th Cir. 1996).

Plancarte-Penaloza argues that counsel was ineffective, under

Strickland v. Washington, 466 U.S. 668, 687 (1984), for failing to inform him 

that it was possible to get a sentence that was less than the agreed 120 months 

in prison. We generally do not review claims of ineffective assistance of counsel 

on direct appeal because there has been no opportunity “to develop the record 

on the merits of the allegations.” United States v. Cantwell, 470 F.3d 1087, 

1091 (5th Cir. 2006) (internal quotation marks and citation omitted). The 

record in the instant case is insufficiently developed to permit proper review of

Plancarte-Penaloza’s ineffective assistance claim. 

AFFIRMED.

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