United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
the Court is Defendant Julian Bocanegra-Lupian's Motion
to Withdraw Guilty Plea (“Motion to Withdraw
Plea” or “Motion”) [Doc. # 31]. The
Government responded,  and Defendant replied. The Motion is
ripe for decision. Based on the parties' briefing,
relevant matters of record, and pertinent legal authority,
the Court grants Defendant's Motion.
September 13, 2018, Defendant pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326.
October 1, 2018, Assistant Federal Public Defender Aisha
Dennis entered a notice of appearance in this case, replacing
the previously assigned Assistant Federal Public Defender. On
November 6, 2019, the Court granted Defendant's request
to continue sentencing to give new counsel adequate time to
review Defendant's file, research the issues in his case,
and become personally prepared to represent
13, 2019, Defendant requested leave to withdraw his guilty
plea. Defendant contends that after his current counsel
received and reviewed the Government's discovery
responses, which included previously undisclosed removal
proceeding recordings, counsel concluded that Defendant may
have a meritorious defense to the illegal reentry charge.
Specifically, Defendant contends his prior removal order was
entered without subject matter jurisdiction because the
relevant Notice to Appear (“NTA”) failed to
specify a date, time, and place for the removal proceedings.
Defendant submits that under federal statute, regulations,
and the Supreme Court's recent decision in Pereira v.
Sessions, NTAs must provide notice of the date
and time of the removal proceedings to be valid and to vest
jurisdiction in the immigration court. See Pereira v.
Sessions, 138 S.Ct. 2105, 2110-14 (2018). Defendant
further contends that the removal proceedings were
fundamentally unfair and failed to comport with due process
because his counsel during those proceedings failed to advise
him of his right to seek protection under the Convention
Against Torture (“CAT”) and because his guilty
plea to the state crime which ultimately was the basis for
his removal was predicated on erroneous legal advice that he
would not lose his legal permanent resident
same day he filed his Motion to Withdraw Plea, Defendant
filed a Motion to Dismiss Indictment (“Motion to
Dismiss”) [Doc. # 32], raising the aforementioned
collateral attacks to his prior removal order.
defendant does not have an absolute right to withdraw his
guilty plea.” United States v. Lord, 915 F.3d
1009, 1014 (5th Cir. 2019). The Court, however, has
discretion to allow a defendant to withdraw his guilty plea
before sentencing “if the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). “The defendant bears the burden
of establishing a fair and just reason for withdrawing his
plea.” United States v. Powell, 354 F.3d 362,
370 (5th Cir. 2003). In deciding whether to allow a defendant
to withdraw his guilty plea, district courts consider several
(1) whether or not the defendant has asserted his innocence;
(2) whether or not the government would suffer prejudice if
the withdrawal motion were granted; (3) whether or not the
defendant has delayed in filing his withdrawal motion; (4)
whether or not the withdrawal would substantially
inconvenience the court; (5) whether or not close assistance
of counsel was available; (6) whether or not the original
plea was knowing and voluntary; and (7) whether or not the
withdrawal would waste judicial resources; and, as
applicable, the reason why defenses advanced later were not
proffered at the time of the original pleading, or the
reasons why a defendant delayed in making his withdrawal
United States v. Carr, 740 F.2d 339, 343-44 (5th
Cir. 1984) (footnotes omitted). “The Carr
factors are considered for the totality of the circumstances,
and the district court is not required to make a finding as
to each individual factor.” United States v.
McKnight, 570 F.3d 641, 646 (5th Cir. 2009). The
Carr factors “are nonexclusive.”
United States v. Urias-Marrufo, 744 F.3d 361, 364
(5th Cir. 2014).
reviewing the Carr factors and considering the
totality of the circumstances, the Court concludes that
Defendant's request to withdraw his guilty plea should be
Carr factor weighs against granting Defendant's
Motion. Defendant asserts he is legally innocent of illegal
reentry because his prior removal order was issued without
jurisdiction. Defendant does not deny that he was in fact
deported or that he reentered the United States without
permission. His argument is, instead, “an assertion of
[his] legal innocence based on perceived potential defenses
to the offense.” See Lord, 915 F.3d at 1014. A
claim of legal innocence, realized after he entered his
guilty plea, is not a basis to withdraw his ...