United States v. Nevarez-Martinez

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 20, 2000
• Docket: 99-50994
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50994 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSA NEVAREZ-MARTINEZ,

Defendant- Appellant.

---------------------------------------------------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-371-DB ---------------------------------------------------------------- October 19, 2000

Before EMILIO M. GARZA, STEWART, and PARKER: Circuit Judges:

PER CURIAM:*

Rosa Nevarez-Martinez appeals the district court’s denial of her motion to withdraw her plea

of guilty to one count of conspiracy to possess cocaine with intent to distribute. We review the

district court’s decision for abuse of discretion looking to the seven factors set forth in United States

v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).

We are persuaded that the district court did not abuse its discretion. Nevarez’s statement that

she “felt innocent” is not sufficient to demonstrate that Nevarez asserted innocence, see United States

v. Grant, 117 F.3d 788, 789 (5th Cir. 1997), and we note that she did not assert actual innocence in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. her motion to withdraw or the supporting affidavit, nor does she do so on appeal.

In addition, the statement does not demonstrate that Nevarez’s plea was not made voluntarily.

Nevarez indicated that she did not understand the specific question regarding whether she wished to

plead guilty, but when asked again, she replied affirmatively. The remainder of the plea colloquy

demonstrates that Nevarez’s plea was knowing and voluntary. Nevarez stated under oath that she

understood the charges against her; that she understood her rights and the consequences of pleading

guilty; that she was not coerced, threatened, or intimidated; and that she was involved in packaging

the cocaine. See United States v. Henry, 113 F.3d 37, 40 (5th Cir. 1997).

Nevarez’s subsequent allegation that her attorney coerced her may not refute her sworn

testimony to the contrary. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).

Nevarez’s claim that the video surveillance tapes influenced her decision to plead guilty is

conclusional, and Nevarez points to no facts or evidence supporting this claim.

As for Nevarez’s claims that her counsel coerced her into pleading guilty and was ineffective

for failing to review the videotapes, the record is not sufficient to make a determination,

and we decline to review this matter. See United States v. Bounds, 943 F.2d 541, 544 (5th Cir.

1991).

In sum, Nevarez failed to carry her burden of demonstrating a “fair and just” reason for

granting her motion to withdraw her plea. See United States v. Badger, 925 F.2d 101, 104 (5th Cir.

1991). Accordingly, we AFFIRM the judgment of the district court. AFFIRMED.