The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER DENYING MOTION TO WITHDRAW PLEA OF GUILTY [Doc. No. 203]
Presently before the Court is Defendant Robert John McGill's motion to withdraw his guilty plea. [Doc. No. 203.] For the reasons below, the Court DENIES Defendant's motion to withdraw his guilty plea.
On July 29, 2009, Defendant was charged by indictment with second degree murder in violation of 18 U.S.C. §§ 1111(b) and 7(8). [Doc. No. 11.] On July 14, 2011, Defendant pled guilty to the charge of second degree murder pursuant to a plea agreement. [Doc. No. 158.]
On December 8, 2011, the Court sentenced Defendant to life in prison, imposed a $100 special assessment, and waived the fine. [Doc. No. 183.] The Court reserved the issue of restitution to be determined at a later date. [Id.] On December 8, 2011, Defendant filed his notice of appeal to the Ninth Circuit. [Doc. No. 184.] On December 9, 2011, the Court entered judgment in the case imposing Defendant's prison sentence. [Doc. No. 185.]
On February 28, 2012, the Government filed its request for restitution. [Doc. No. 200.]
On March 22, 2012, the Ninth Circuit stayed the appellate proceedings pending this Court's ruling on the Government's request for restitution. [Doc. No. 202.] On March 23, 2012, Defendant filed the present motion to withdraw his guilty plea. [Doc. No. 203.]
By the present motion, Defendant moves to withdraw his guilty plea. [Doc. No. 203.] Defendant argues that he should be allowed to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B) because the Court has not yet imposed its sentence in this case and "fair and just reasons" exist for allowing him to withdraw his guilty plea. [Doc. No. 203-1 at 2-6.] In response, the Government argues Defendant cannot withdraw his guilty plea because the Court has already imposed a final sentence within the meaning of Rule 11. [Doc. No. 204 at 3-4.]
Federal Rule of Criminal Procedure 11 governs pleas in criminal cases and sets forth when a criminal defendant may withdraw a guilty plea. Rule 11(d)(2) provides: "A defendant may withdraw a plea of guilty or nolo contendere . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). However, Rule 11 also provides: "After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack." Id. 11(e).
"The decision to allow withdrawal of a plea is solely within the discretion of the district court." United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). "The defendant has the burden to show a fair and just reason for withdrawal of a plea." Id.
A. Whether Sentence Has ...