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UNITED STATES v. LOPEZ-REYES

June 24, 1996

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



The opinion of the court was delivered by: RHOADES

 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, ...


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