United States v. Molina-Jimenez , 73 F. App'x 744 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 26, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41336
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS WILFREDO MOLINA-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-10-1
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Luis Wilfredo Molina-Jimenez appeals his conviction on a
guilty plea and his 121-month sentence for possession with intent
to distribute marijuana.
Molina-Jimenez contends that the district court abused its
discretion when it denied his motion to withdraw his plea. This
court reviews the denial of a motion to withdraw a plea for an
abuse of discretion. United States v. Adam, 296 F.3d 327, 332 (5th
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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that this opinion should not be published and is not precedent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.
Cir. 2002). The factors considered are: whether the defendant
asserted innocence, delayed in filing the motion, and had close
assistance of counsel; whether the withdrawal would prejudice the
Government, inconvenience the court, and waste judicial resources;
and whether the plea was knowing and voluntary. Id. No single
factor mandates a particular result, and the determination is made
based on the “totality of the circumstances.” Id.An examination of the record and the above factors
demonstrates that, based on the totality of the circumstances, the
district court did not abuse its discretion by denying Molina-
Jimenez’s motion to withdraw his plea. See id. The record
supports the district court’s findings that Molina-Jimenez was not
credible and that his assertions of innocence were self-serving.
The record shows that Molina-Jimenez entered a knowing and
voluntary plea. Solemn declarations in court carry a strong
presumption of verity. See id. at 333. Molina-Jimenez has failed
to show that withdrawal of his plea would not have caused the
Government prejudice, would not have inconvenienced the court, and
would not have wasted judicial resources. See id. at 332. The
record provides no support for Molina’s assertion that he was
denied the close assistance of counsel. See id.Molina-Jimenez asserts that the district court erred by
denying him a reduction for his role as a courier in the offense.
This court reviews the finding on a defendant’s role in an offense
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for clear error. United States v. Deavours, 219 F.3d 400, 404 (5th
Cir. 2000).
Section 3B1.2(b), U.S.S.G., authorizes a two-level reduction
for a “minor” participant. The district court is not required to
find, based solely on the defendant’s bare assertion, that a role
adjustment is warranted. U.S.S.G. § 3B1.2, comment. (n.3(C)).
This court has held that a “‘mule’ or transporter of drugs may
not be entitled to minor or minimal status.” United States v.
Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993). The burden is on the
defendant to establish his entitlement to the reduction by a
preponderance of the evidence. Burton v. United States, 237 F.3d
490, 503 (5th Cir. 2000).
Molina-Jimenez was the sole identifiable participant in the
crime at issue. The only evidence supporting his argument that he
was merely a courier is his self-serving assertion. Furthermore,
the record and Molina-Jimenez do not provide any explanation why
someone would entrust a mere courier with a large and valuable
quantity of marijuana. Molina-Jimenez has not met his burden of
showing that he is entitled to the U.S.S.G. § 3B1.2(b) reduction.
See Burton, 237 F.3d at 503.
Molina-Jimenez asserts that 21 U.S.C. § 841(a) and (b) are
unconstitutional in light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). As Molina
acknowledges, his argument is foreclosed by this court’s precedent
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and is raised only to preserve the issue for Supreme Court review.
See United States v. Fort, 248 F.3d 475, 482-83 (5th Cir. 2001);
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
Accordingly, the judgment of the district court is
AFFIRMED.
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