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United States of America v. Fernando Guadalupe Polino-Vasquez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 28, 2013

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
FERNANDO GUADALUPE POLINO-VASQUEZ, DEFENDANT.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING JOINT MOTION TO WITHDRAW GUILTY PLEA AND VACATING ORDER ACCEPTING PLEA

On July 13, 2012, Defendant Fernando Guadalupe Polino-Vasquez was arrested and charged with importation of approximately 14.11 kilograms of methamphetamine. The substance seized in this case was field tested and returned a positive test for methamphetamine (see Complaint, Doc. No. 1). Defendant Polino-Vasquez accepted the Government's fast track offer, entered into a plea agreement to importation of methamphetamine, and signed said agreement on August 24, 2012 (see Plea Agreement, Doc. No. 14).

On August 24, 2012, Defendant Polino-Vasquez tendered a guilty plea before the Magistrate Judge, the Honorable Peter C. Lewis, pursuant to Rule 11 of the Federal Rules of Criminal Procedure. On August 24, 2012, Magistrate Judge Lewis issued a Findings and Recommendation to this Court, recommending that the District Judge accept the defendant's guilty plea (see Finding and Recommendations, Doc. No. 15).

On September 17, 2012, after review of the Magistrate Judge's findings and no objections having been filed within the 14 days allowed in said findings, this Court accepted the defendant's plea of guilty to Count 1 of the Information. (see Order Accepting Plea, Doc. No. 17).

On March 26, 2013, the Government and Defendant Polino-Vasquez filed a Joint Motion to Withdraw Guilty Plea (Doc. No. 20) and attached to said motion a DEA-113 Laboratory Report dated March 22, 2013, showing that the seized substance was tested and returned a positive test for cocaine.

GOOD CAUSE HAVING BEEN SHOWN and based on the joint motion of the parties, and pursuant to Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure which provides that a defendant may withdraw a guilty plea after the Court accepts the plea and before sentencing, if "the defendant can show a fair and just reason for requesting the withdrawal", the Court hereby GRANTS the Joint Motion to Withdraw Guilty Plea and hereby VACATES the Order Accepting Plea filed on September 17, 2012.

IT IS SO ORDERED.

cc: Hon. Peter C. Lewis U.S. Magistrate Judge

20130328

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