United States v. Javier Ybarra , 626 F. App'x 472 ( 2015 )


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  •      Case: 14-10938       Document: 00513204402         Page: 1     Date Filed: 09/23/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    September 23, 2015
    No. 14-10938
    Summary Calendar                            Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    JAVIER YBARRA,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:14-CR-56-1
    Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
    PER CURIAM: *
    Javier Ybarra pleaded guilty, without the benefit of a plea agreement, to
    an indictment charging him with conspiracy to possess, with intent to
    distribute, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
    (b)(1)(C). He was sentenced, inter alia, to 240 months’ imprisonment. Ybarra
    challenges the district court’s denial of his motion to withdraw his guilty plea
    and the court’s drug-quantity calculation for sentencing.
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 14-10938     Document: 00513204402     Page: 2   Date Filed: 09/23/2015
    No. 14-10938
    A defendant may withdraw his guilty plea before sentencing if he can
    establish a “fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2);
    United States v. Still, 
    102 F.3d 118
    , 123–24 (5th Cir. 1996). Considering each
    of the seven factors provided in United States v. Carr, 
    740 F.2d 339
    , 343–44
    (5th Cir. 1984), the district court rejected Ybarra’s motion.
    Contrary to Ybarra’s claims, the court found: he was aware of his co-
    conspirator’s role as an informant for the Fort Worth, Texas, police
    department; but his co-conspirator was not acting as an informant during the
    timeframe of the conspiracy charged in the indictment. Furthermore, the court
    noted Ybarra’s motion, filed four months after his rearraignment and just
    seven days prior to his sentencing hearing, was considerably delayed.
    Although the court found there was no evidence the Government would suffer
    prejudice if the plea was withdrawn, it determined a withdrawal would
    inconvenience the court and waste judicial resources. It also found: Ybarra
    had the close assistance of counsel; and his guilty plea was knowing and
    voluntary.
    Based on the totality of the circumstances, the court did not abuse its
    discretion in denying Ybarra’s motion. See United States v. McKnight, 
    570 F.3d 641
    , 645 (5th Cir. 2009).
    Because, as he concedes, Ybarra failed to preserve his drug-quantity
    claim in district court, our review is only for plain error. In claiming plain
    error, he asserts the court failed to conduct a scope-and-foreseeability analysis
    pursuant to the Sentencing Guidelines. U.S.S.G. § 1B1.3(a)(1). The analysis,
    Ybarra contends, would have relieved him of liability for methamphetamine
    found in his co-conspirator’s vehicle on the date of their arrest, resulting in a
    shorter sentence. The relevant conduct for conspiratorial activity, however, is
    a question of fact; therefore, the court’s drug-quantity finding cannot constitute
    2
    Case: 14-10938    Document: 00513204402    Page: 3   Date Filed: 09/23/2015
    No. 14-10938
    a plain error, which requires, inter alia, demonstrating a “clear” or “obvious”
    error. E.g., United States v. Castellon-Aragon, 
    772 F.3d 1023
    , 1026 (5th Cir.
    2014).
    AFFIRMED.
    3
    

Document Info

Docket Number: 14-10938

Citation Numbers: 626 F. App'x 472

Filed Date: 9/23/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023