United States v. Lizarraras-Chacon

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40424
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JOSE DE JESUS LIZARRARAS-CHACON,

Defendant−Appellant.

Appeal from the United States District Court
for the Southern District of Texas
No. 5:18-CR-310-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Jose Lizarraras-Chacon appeals his conviction of illegal reentry, main-

*
Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 5
TH CIRCUIT RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 13, 2020

Lyle W. Cayce
Clerk
Case: 19-40424 Document: 00515414491 Page: 1 Date Filed: 05/13/2020

No. 19-40424
2
taining that the district court abused its discretion in denying his motion to
withdraw his guilty plea. “[A] district court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the evidence.”
United States v. Lord, 915 F.3d 1009, 1013−14 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 140 S. Ct. 320 (2019). In evaluating
the denial of a motion to withdraw a plea, we consider the totality of circum-
stances, including the seven factors enumerated in United States v. Carr,
740 F.2d 339, 343−44 (5th Cir. 1984). “[N]o single factor or combination of
factors mandates a particular result, and [the defendant] bears the burden of
establishing a fair and just reason for withdrawal of his plea.” United States
v. Still, 102 F.3d 118, 125 (5th Cir. 1996).
Lizarraras-Chacon’s motion to withdraw was based on Pereira v. Ses-
sions, 138 S. Ct. 2105, 2109−10 (2018), which held that a notice to appear
(“NTA”) that fails to designate a time and place of hearing does not trigger the
stop-time rule for cancellation of removal, and on district court rulings that,
relying on Pereira, dismissed illegal-reentry indictments based on invalid
NTAs. Lizarraras-Chacon acknowledges that United States v. Pedroza-Rocha,
933 F.3d 490 (5th Cir.), petition for cert. filed (U.S. Nov. 6, 2019) (No. 19-6588),
forecloses his argument based on Pereira and that he is raising the issue only
to preserve it for further review.
Accordingly, irrespective of the Carr factors, Lizarraras-Chacon cannot
show that the district court abused its discretion in determining that he failed
to carry his burden of providing a fair and just reason for withdrawal of his
plea. See Lord, 915 F.3d at 1013−14; Still, 102 F.3d at 125. The judgment is
AFFIRMED.
Case: 19-40424 Document: 00515414491 Page: 2 Date Filed: 05/13/2020