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United States v. Perla Rodriguez , 616 F. App'x 153 ( 2015 )


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  •      Case: 14-41262      Document: 00513198779         Page: 1    Date Filed: 09/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT    United States Court of Appeals
Fifth Circuit
FILED
September 18, 2015
No. 14-41262
Summary Calendar                             Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PERLA YAZMINE RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-242-9
Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM: *
Perla Yazmine Rodriguez appeals her guilty-plea conviction for
conspiracy     to   possess    with     intent    to   manufacture       and    distribute
methamphetamine in violation of
    21 U.S.C. § 846
    . She argues that the district
court erred in denying her motion to withdraw her guilty plea because it
applied the factors outlined by this court in United States v. Carr,
    740 F.2d 339
    , 343-44 (5th Cir. 1984), to determine whether she had a “fair and just
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41262    Document: 00513198779     Page: 2   Date Filed: 09/18/2015
No. 14-41262
reason” for withdrawing her plea instead of determining whether counsel’s
assistance was ineffective under Strickland v. Washington,
    466 U.S. 668
    (1984). She argues that her retained counsel, who was substituted in this case
for appointed counsel, was ineffective because he failed to determine that
venue was improper, failed to examine the discovery in the case, failed to
communicate with her before her plea hearing, and misrepresented her
potential sentence to her. She asserts that if counsel had adequately prepared
for her case, he would have discovered that she believed that she was
transporting marijuana, not methamphetamine, for her co-conspirators.
We review the denial of a motion to withdraw a guilty plea for an abuse
of discretion. United States v. Urias-Marrufo,
    744 F.3d 361
    , 364 (5th Cir.
2014). Before sentencing, a defendant may withdraw her 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 seven factors, including whether close assistance of counsel was
available to the defendant and whether the plea was knowing and voluntary.
Carr,
    740 F.2d at 343-44
    . The district court concluded that neither the Carr
factors nor Strickland presented a basis for Rodriguez to withdraw her plea.
While Rodriguez argues that the Carr factors should be revisited, “one
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, the district court did not err in considering the
Carr factors, including the factor of whether Rodriguez had close assistance of
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Case: 14-41262    Document: 00513198779     Page: 3   Date Filed: 09/18/2015
No. 14-41262
counsel, when ruling on her motion to withdraw her guilty plea. See Urias-
Marrufo, 744 F.3d at 366.
Rodriguez’s claims of ineffective assistance of counsel are nevertheless
relevant to the Carr factor concerning the voluntariness of her plea. See id. at
365-66. As found by the district court, however, Rodriguez failed to show that,
but for counsel’s alleged deficient performance, she would have proceeded to
trial. See Hill v. Lockhart,
    474 U.S. 52
    , 57-59 (1985); see also Urias-Marrufo,
744 F.3d at 366; United States v. Betancourt,
    586 F.3d 303
    , 308-09 (5th Cir.
2009); United States v. Caldwell,
    16 F.3d 623
    , 624 (5th Cir. 1994); United
States v. Gracia,
    983 F.2d 625
    , 629 (5th Cir. 1993).
Rodriguez’s arguments on appeal do not otherwise challenge the district
court’s analysis of the remaining Carr factors. Accordingly, she has waived
any challenge to the analysis of those factors. See United States v. Torres-
Aguilar,
    352 F.3d 934
    , 936 n.2 (5th Cir. 2003). As Rodriguez has not shown
that the district court abused its discretion in denying her motion to withdraw
her guilty plea, the district court’s judgment is AFFIRMED.
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