United States v. Hernandez-Armendariz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50736
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROSALIO HERNANDEZ-ARMENDARIZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-680-1

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

Rosalio Hernandez-Armendariz appeals his conviction for alien
smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). He argues that
the district court erred in denying his motion to withdraw his guilty plea.
Hernandez-Armendariz concedes that because he did not object to the
magistrate judge’s report recommending the denial of his motion, our review
is for plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 31, 2020

Lyle W. Cayce
Clerk
Case: 19-50736 Document: 00515365642 Page: 1 Date Filed: 03/31/2020

No. 19-50736
2
1420-23, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(1). To establish plain error, he must show (1) an
error that has not been affirmatively waived, (2) that is clear or obvious, and
(3) that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, we have the discretion to correct
the error but will do so only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.; see also Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1905 (2018).
In evaluating the denial of a motion to withdraw a guilty plea, we
consider the totality of circumstances, including the seven factors enumerated
in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The district
court considered each of the seven factors and found that all of them militated
against allowing withdrawal of the plea. We see no clear or obvious error in
the district court’s decision. See Puckett, 556 U.S. at 135; see also United States
v. Lord, 915 F.3d 1009, 1013-17 (5th Cir.), cert. denied, 140 S. Ct. 320 (2019).
AFFIRMED.
Case: 19-50736 Document: 00515365642 Page: 2 Date Filed: 03/31/2020