* 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. 07-40496

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANTONIO VILLANUEVA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:06-CR-804-1

Before SMITH, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Antonio Villanueva appeals his guilty-plea conviction for transporting, in

the tractor of the tractor-trailer he was driving, illegal aliens, in violation of 8

U.S.C. § 1324. 

First, he maintains he did not knowingly and voluntarily waive the right

to appeal his conviction and sentence, maintaining, as discussed below, that his

guilty plea was not knowing and voluntary. The Government seeks to enforce

waiver. 

United States Court of Appeals

Fifth Circuit

F I L E D

April 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-40496

2

The plea agreement provided Villanueva waived his right to appeal his

conviction and sentence, except that he reserved the right to appeal a sentence

imposed above the statutory maximum or an upward departure from the

Sentencing Guidelines. At rearraignment, the district court advised Villanueva

that he was waiving his right to appeal under the plea agreement except for the

above exceptions, and Villanueva stated that he understood. The record

indicates: Villanueva knowingly and voluntarily waived his right to appeal,

inter alia, his conviction; and that, unless the guilty plea was not knowing and

voluntary, the waiver is valid and enforceable. See United States v. Bond, 414

F.3d 542, 544 (5th Cir. 2005).

Next, as noted, Villanueva contends his guilty plea was unknowing and

involuntary because he did not understand the nature of the offense or know

aliens were hidden in the vehicle. Even if there is a valid appeal waiver, we can

review whether there is a sufficient factual basis to support a defendant’s guilty

plea. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The factual

basis summarized by the Government at the rearraignment was sufficient to

establish Villanueva: transported aliens within the United States with the

intent to further their unlawful presence in the United States; and knew the

aliens were in the country unlawfully. See United States v. Nolasco-Rosas, 286

F.3d 762, 765 (5th Cir. 2002). Therefore, the district court did not err in finding

the factual basis supported Villanueva’s guilty plea. See United States v. Marek,

238 F.3d 310, 315 (5th Cir. 2001) (en banc).

Finally, Villanueva maintains the district court abused its discretion in

denying his motion to withdraw his guilty plea. After conducting an evidentiary

hearing,the district court considered the seven factors provided in UnitedStates

v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The court determined: (1)

Villanueva asserted his innocence but his testimony was not credible; (2) the

Government would be prejudiced if the motion were granted, because the

material witnesses had been released and were no longer available; (3)
No. 07-40496

3

Villanueva filed his motion 68 days after he pleaded guilty; (4) his guilty plea

was knowing and voluntary; and (5) he had assistance of counsel throughout the

proceedings. The district court stated it did not put much emphasis on the other

two Carr factors: whether the withdrawal of the motion would inconvenience

the court or waste judicial resources. Villanueva has not shown the district

court failed to consider any of the Carr factors, or abused its discretion in

denying his motion. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.

2003).

AFFIRMED.