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UNITED STATES v. LOPEZ-REYES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA


June 24, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
JAVIER LOPEZ-REYES, Defendant.

The opinion of the court was delivered by: RHOADES

ORDER DENYING MOTION TO WITHDRAW GUILTY PLEA

 This matter is before the Court on Defendant Javier Lopez-Reyes' motion to withdraw his guilty plea. For the reasons stated below, the motion is denied.

 I. Background

 On January 26, 1996, Defendant pleaded guilty to Count One of an indictment charging him with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Defendant pleaded guilty pursuant to a signed plea agreement which was filed January 29, 1996. The Court conducted a Rule 11 hearing, and finding that the plea had been "freely and voluntarily made" and that the defendant had a "full understanding of the charges and consequences of the plea," the plea was entered. The plea agreement was ordered filed and sentencing was set for April 15, 1996. Sentencing was then continued to June 24, 1996. On June 13, 1996, Defendant filed the instant motion to withdraw his guilty plea.

 II. Discussion

 A. Withdrawal Without a "Fair and Just" Reason

 Defendant contends that a defendant is entitled to withdraw a guilty plea anytime prior to sentencing without establishing "fair and just" reasons. Defendant relies on three Ninth Circuit cases for this argument: United States v. Hyde, 82 F.3d 319 (9th Cir. 1996); United States v. Washman, 66 F.3d 210 (9th Cir. 1995); United States v. Cordova-Perez, 65 F.3d 1552 (9th Cir. 1995).

 However, the Ninth Circuit precedent allowing withdrawal of guilty pleas without fair and just reason is limited to pleas connected with plea agreements which were binding on the court under Rule 11(e)(1)(A) or 11(e)(1)(C). See Washman, 66 F.3d at 212 ("Washman and the government entered into the type of plea agreement that includes a binding sentencing range. This type of agreement is governed by Fed. R. Crim. P. 11(e)(1)(C)."); Cordova-Perez, 65 F.3d at 1555 ("When a defendant offers to plead guilty . . . the court has three options [under] Fed. R. Crim. P. 11(e)(1)(A)."). Here, the plea agreement was a non-binding recommendation pursuant to Rule 11(e)(1)(B). There is never a need for the Court to "accept" or "reject" an (e)(1)(B) plea agreement. *fn1" Therefore, the cited Ninth Circuit precedent is inapposite. *fn2" Defendant is required to show fair and just reasons for withdrawal of his guilty plea in this case.

 B. Fair and Just Cause

 To withdraw a plea prior to sentencing, a defendant must establish a "fair and just" reason for doing go. United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). The burden of establishing a fair and just reason lies with the defendant. United States v. Myers, 993 F.2d 713, 714 (9th Cir. 1993). Whether to permit the defendant to withdraw a guilty plea "is within the sound discretion of the district court." Alber, 56 F.3d at 1111 (citing United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988).

 Here, Defendant offers several explanations for his "fair and just" reason. First, he argues that the written plea agreement has internal inconsistencies which render the plea misleading. Next, he contends that the factual proffer in the plea agreement contains facts which require speculation on the part of the Defendant. Finally he claims that his attorney failed to adequately explain the plea agreement to him, told him that the sentence received would be much shorter than that recommended in the plea agreement and led him to believe that he had no choice but to enter a plea of guilty. None of Defendant's contentions are supported by the record and none represent "fair and just" cause for the Court to permit Defendant to withdraw the guilty plea.

 1. Internal Inconsistencies

 Defendant identifies five sections of the plea agreement which he contends have internal inconsistencies. The Court disagrees.

 First, Defendant contends that the plea agreement indicates a ten year mandatory minimum sentence without mentioning that adjustments may be available which permit a sentence below the mandatory minimum. However, the plea agreement clearly states that the safety valve (U.S.S.G. § 5C1.2) may be available, resulting in a sentence below the minimum mandatory. See Plea Agreement at 8.

 Next, Defendant argues that since the plea agreement states that the Sentencing Guidelines will govern his sentence and that the recommendation in the plea agreement is not binding on the Court, the plea agreement is internally inconsistent. These two provisions are in no way inconsistent. The sentencing Guidelines will govern the sentence, and the plea agreement is not binding on the Court. The plea agreement is perfectly clear on both these facts.

 Next, Defendant contends that the plea agreement is inconsistent because it does not indicate that the Defendant will receive a four point reduction for "minimal participant" under § 3B1.2(a). The plea agreement is not inconsistent; it reflects the agreement between the parties. No four-point departure for minimal participant will be recommended, and Defendant is precluded for requesting such an adjustment. See Plea Agreement at P XI(C).

 Next, Defendant argues, similar to above, that the agreement is inconsistent because it indicates that Defendant cannot seek any adjustment or departures other than those set forth in the agreement. Again, far from being inconsistent, the agreement is perfectly clear.

 Finally, Defendant claims that the clause in the agreement indicating what the Government's recommendation will be is inconsistent. The agreement clearly states that the Government will recommend the low end of the Guideline range unless the Court adopts an offense level or downward adjustment below the Government's recommendation. In that event, the Government will recommend a sentence "as near as possible to what the sentence would have been if the Government's recommendations had been followed." There is no ambiguity in this statement: the plea agreement clearly lays out the Government's obligation.

  In short, the plea agreement is a model of clarity. There are no inconsistencies, and the plea agreement clearly and explicitly spells out the Government's obligations. In light of the clarity of the plea agreement, Defendant's arguments border on frivolity. Defendant's motion on this argument is denied.

 2. The Factual Proffer

 Defendant's next argument is that the factual proffer in the plea agreement is insufficient in that it contains facts which require speculation on the part of the Defendant. To be sufficient, all that is required is that the Court be satisfied that a factual basis exists for each of the elements in the charge to which the defendant pleads guilty. Fed. R. Crim. P. 11(f); United States v. Alber, 56 F.3d 1106, 1110 (9th Cir. 1995). Here, the factual allegations contained in the plea agreement, which the Defendant represented to be "true and correct facts," clearly support a factual basis for each of the elements of the charge to which Defendant pleaded guilty. Furthermore, the Court does not agree that the factual proffer contains facts which could not have been within the knowledge of the Defendant, or which would require speculation on his part. This argument does not support Defendant's motion to withdraw his guilty plea, and does not establish a "fair and just" reason for the Court to permit a withdrawal.

 3. Attorney-Client Relationship

 Defendant has made three contentions with respect to the attorney-client relationship: (1) his attorney failed to adequately explain the plea agreement; (2) his attorney told him that the sentence would be well below that contained in the plea agreement; and (3) his attorney led him to believe he had no choice but to enter a plea of guilty. Each of these contentions is refuted by the record.

 First, the record indicates that Defendant fully understood the plea agreement. The Court asked Defendant "Do you have a full understanding of your obligations, after your discussion with your attorney, your obligations under the Plea Agreement and a full understanding of the obligations of the Government under the Plea Agreement?" Defendant responded "Yes." See Transcript of Plea at 7-8. Defendant also indicated that he had no questions for the Court or for his counsel regarding the plea agreement, and that he had had enough time to review the plea agreement with counsel prior to entering the plea. Id. at 8, 9. The record clearly reflects that Defendant understood the plea agreement.

 Next, Defendant contends that his attorney represented to him that the sentence would be well below that contained in the plea agreement. This conflicts with Defendant's statements in open court when he pleaded guilty. He was informed, and said he understood, that the Court would determine his sentence pursuant to the Sentencing Guidelines. Id. at 20, 22. He stated he understood what the maximum sentence could be, and that no one had promised him the sentence would be anything less. He further stated that he realized he would not have a right to withdraw his guilty plea if he was unhappy with the sentence. Defendant's contention that he was promised a sentence lower than that contained in the plea agreement is not supported by the record.

 Finally, Defendant argues that his attorney told him he had no choice but to plead guilty. This too is directly contradicted by the record. When asked by the Court, Defendant stated that he had not been threatened or coerced into entering the guilty plea, that he had not been made any promises aside from the consideration in the plea agreement, and that he was pleading guilty voluntarily and because he was guilty and for no other reason. See Transcript at 19, 20, 22, 24. Defendant's argument is contradicted by the record.

 III. Conclusion

 For the reasons stated above, Defendant's motion to withdraw his guilty plea is denied. Defendant's sentencing hearing will proceed as scheduled.

 IT IS SO ORDERED:

 Date: 6/24/96

 John S. Rhoades, Sr.

 United States District Judge


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