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U.S.A. v. Ross

United States District Court, Ninth Circuit

April 25, 2013


CRIMINAL MINUTES - GENERAL Proceedings: (IN CHAMBERS): MOTION TO WITHDRAW GUILTY PLEA (filed January 7, 2013) [Dkt. No. 144]

CHRISTINA A. SNYDER, District Judge.


On April 27, 2011, a federal grand jury returned a one-court indictment, charging defendant William David Chatman with conspiracy to possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. Dkt. No. 20 ("Indictment"). On October 17, 2011, the parties filed an executed plea agreement, which this Court accepted. Dkt. Nos. 75 ("Plea Agreement"); 87 ("plea order"). Pursuant to the agreement, on October 25, 2011, the Court conducted a Rule 11 plea colloquy, in which defendant stated that the terms of the plea agreement were acceptable to him and entered a guilty plea.

On January 7, 2013, defendant filed the instant motion to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B). Dkt. No. 144. On March 20, 2013, the government filed an opposition to defendant's motion. Dkt. No. 170. The Court held an evidentiary hearing on April 5, 2013. After considering the parties' arguments, the Court finds and concludes as follows.


A. Facts Underlying Indictment

The following facts are taken from the parties' plea agreement. Dkt. No. 75 ("Plea Agreement"). On May 18, 2010, defendant and a co-defendant ("Ross") met with an undercover Drug Enforcement Administration ("DEA") agent ("the UC") in which they expressed interest in purchasing between 8, 000 to 15, 000 oxycodone tablets from the UC. Plea Agreement at 6. Later that day, defendant and Ross called the UC informing him that they wished to purchase 5, 000 tablets at a price of $18 each. Id . Defendant, Ross, and another co-defendant then met with the UC personally and agreed to purchase the oxycodone. Id. at 6-7. Defendant and his co-defendant then got into a vehicle to follow the UC to the final location where they believed they would purchase the oxycodone tablets. Id. at 7. Other DEA agents stopped the vehicle while it was in route to the rendezvous point and conducted a search of the vehicle, finding $80, 856 cash, $7, 204 of which was on defendant's person.

B. Indictment and Guilty Plea

After defendant was arrested and detained at San Bernardino County Jail, defense attorney Angel Navarro was appointed to represent him. Opp'n Ex. B ("Navarro Decl.") at 2. On October 17, 2011, the parties filed an executed plea agreement. Under the agreement, defendant agreed to plead guilty to violating 21 U.S.C. § 846 in exchange for the government recommending a reduced sentence. See Plea Agreement at 2-3. Defendant further agreed to forfeit his right "to pursue any affirmative defenses, Fourth Amendment or Fifth Amendment claims, and other pretrial motions that have been field or could be filed." Id. at 9.

On October 25, 2011, the court conducted a Rule 11 hearing where defendant pled guilty, acknowledged that he had read the plea agreement, had discussed it with his attorney, understood its terms, and believed that it was in his best interest to accept the terms of the agreement. Opp'n Ex. A at 9:13-24. Defendant indicated multiple times at the hearing that he was satisfied with his attorney. Id. at 11:24-25, 12:1-6. Defendant also stated that he had discussed the indictment with his attorney, as well as the various defenses he may have to the charges set forth therein. Id. at 11:17-23; 16:21-24. Defendant's attorney agreed that it was in defendant's interest and the interest of justice for the Court to accept defendant's plea. Id. at 22:4-7. Defendant indicated that he understood the maximum possible sentence he was facing if he pled guilty, as well as the fact that the Court could not apprise defendant with any certainty what his likely sentence would be. Id. at 13:16-15:18. The Court warned defendant that it would be "virtually impossible" for him to withdraw his guilty plea once the Court accepted it, and therefore asked defendant whether he needed "more time to think this matter over before I accept your plea?" Id. at 22:12-16. Defendant responded that he did not, and the Court then made the necessary findings to accept defendant's plea. Id. at 22:23-24.

C. Post-Plea Events

On November 22, 2011, defendant participated in a "cooperation proffer" with the government in an attempt to reduce his potential sentence. Opp'n Ex. C. Thereafter, defendant's sentencing date was continued several times at his request. Dkt. Nos. 112, 118, 128. Defendant's request to be released on bond pending sentencing was also denied. Dkt. No. 116.

On November 15, 2012, the government filed its sentencing position, recommending a sentence of 140 months imprisonment (concurring with the USPO's recommendation). Dkt. No. 135 ("Sentencing Recommendation"). This recommendation did not include any credit for defendant's attempted cooperation with the government. On November 19, the Court granted defendant's request to be appointed new counsel. Dkt. No. 141.

On January 7, 2013, defendant filed the instant motion to withdraw his guilty plea, contending that Mr. Navarro incorrectly informed him that he could still file a motion to suppress evidence obtained during his traffic stop, even after he pled guilty. Mot. at 3. Defendant submitted a declaration in support of his motion on January 12, 2013. Dkt. No. 150. Defendant claimed that he wished to withdraw his guilty plea because: (1) it was not made knowingly and intelligently; (2) he pleaded guilty based on representations from his former attorney that he would file a motion to suppress evidence from the stop of the vehicle; (3) that he believed his former attorney would be filing such a motion. Id . On February 4, 2013, the Court granted the government's ex parte application finding a limited waiver of the attorney-client privilege, and allowed the government to propound interrogatories to defendant's former attorney related to defendant's claim that Navarro provided ineffective assistance of counsel. Dkt. No. 155.

On February 25, 2013, Navarro provided a declaration with responses to the government's interrogatories along with defendant's objections. Opp'n Ex. B. Navarro indicated that he had met with defendant on fourteen separate occasions from defendant's arrest up until the time of his declaration. Id. at 2. He further stated that he "never discussed the legality or illegality of the vehicle stop" that forms the basis of defendant's motion to withdraw his plea; based on the discovery before him, he was of the view that this was not "an issue that [he] needed to litigate." Id. at 3. Navarro further states that defendant "never asked [him] to file a suppression motion, " and "never told [defendant] that [he] could file a suppression motion even after he had entered his plea of guilty." Id. at 4-5. Defendant objects to these latter averments, stating that he was told that he could litigate the constitutionality of his stop even after he entered a guilty plea. Id.

Navarro also details the numerous discussions he had with defendant after receiving the original plea offer from the government, the modifications to this agreement, and the discussions that he had with defendant that led defendant to ultimately indicate his assent to the agreement. Id. at 7-16. He further states that he discussed the potential defenses and concerns defendant had with respect to the calculation of his sentencing guidelines. Id. at 5-7. He also honored defendant's request to file a request for bail, even though Navarro knew that the request had no chance of success. See id. at 17.


"A defendant does not always have the right to withdraw a plea because 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). A district court may allow a defendant to withdraw a 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 has the burden of demonstrating a fair and just reason for withdrawal of a plea. United States v. Davis , 428 F.3d 802, 805 (9th Cir. 2005).

However, this standard is to be applied liberally. Id .; see also United States v. Signori , 844 F.2d 635, 637 (9th Cir. 1988) (a motion to withdraw a plea pre-sentence should be "freely allowed"). "Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." United States v. Ortega-Ascanio , 376 F.3d 879, 883 (9th Cir. 2004).


Defendant contends that it would be fair and just to allow him to withdraw his plea, because his prior counsel failed to honor his request to file a motion to suppress the evidence that was obtained as a result of the DEA agents' search of the vehicle where defendant was a passenger. Defendant argues that his prior attorney misrepresented the consequences of his guilty plea to him, for defendant believed that his attorney could and would still file a motion to suppress even after he pleaded guilty.

The Court concludes, however, that defendant may not withdraw his guilty plea. First, the Court notes that defendant waited nearly 14 months after his change of plea to file a request to appoint new counsel and file a motion to withdraw his plea. While delay alone does not defeat a showing of a fair and just reason to withdraw a plea, the timeliness of defendant's motion can serve as a "barometer of the defendant's candor with the court about his reasons for withdrawal." United States v. Garcia , 401 F.3d 1008, 1013 (9th Cir. 2005). Moreover, defendant's request came approximately four days after the government filed its sentencing position recommending a sentence of 140 months imprisonment. As the Ninth Circuit has repeatedly held, the possibility of a higher than expected sentence is not adequate grounds for withdrawing a guilty plea. See United States v. Showalter , 569 F.3d 1150, 1156 (9th Cir. 2008) ("[A] defendant may not withdraw a guilty plea because his sentence may be different from that which was originally anticipated.") (citation omitted); Nostratis , 321 F.3d at 1211 (same). The circumstances and timing of defendant's motion to withdraw his guilty plea thus weigh against granting defendant's motion.

Second, in light of the timing of defendant's request, among other circumstances, defendant simply does not offer a credible reason for seeking to withdraw his plea. In the plea agreement itself, defendant acknowledged that he was giving up the ability to pursue any affirmative defenses, including defenses under the Fourth and Fifth Amendments to the U.S. Constitution, as well as "all other pretrial motions." Dkt. No. 75 at 8-9. Moreover, defendant stated that he had read the plea agreement, understood its various provisions, and was aware of the rights he was giving up pursuant to the agreement. Opp'n Ex A at 9:12-24 (defendant's statement that he understood the agreement); 11:4-25; (defendant's statement that he understood what defenses the agreement precluded him from pursuing). Defendant also confirmed that he had discussed with his attorney the rights he would be giving up, including any potential defenses to the charged crimes, and that he was satisfied with the advice he received. Id. at 12:1-6. The Court affords great weight to these sworn statements defendant made during the plea colloquy. See United States v. Mims , 928 F.2d 310, 313 (9th Cir. 1991) ("We attach substantial weight to contemporaneous on-the-record statements in assessing the voluntariness of pleas."); United States v. Anderson , 993 F.2d 1435, 1438 (9th Cir. 1993) ("Statements made by a criminal defendant contemporaneously with his plea should be accorded great weight because solemn declarations made in open court carry a strong presumption of verity.") (internal quotation marks omitted).

And Navarro's declaration, along with his testimony and that of defendant at the evidentiary hearing, confirm that defendant offers no fair and just reason for withdrawing his guilty plea. Navarro unequivocally stated that defendant never asked him to file a motion to suppress at any time before he entered his plea, as reflected in his notes, nor did Navarro ever represent to defendant that he could file such a motion after defendant pled guilty. Defendant's testimony to the contrary-that he agreed to plead guilty based upon Navarro's representation that he could still bring a motion to suppress-is not credible. The court finds that the evidence does not support defendant's contention that Navarro made such an egregious error, given the absence of evidence either corroborating defendant's contentions or suggesting that Navarro provided defendant with ineffective assistance of counsel in any other respect. In fact, the record reflects Navarro's willingness to file a motion for bail that he personally felt was frivolous at the defendant's request. It is therefore difficult for the Court to ascertain why Navarro would refuse to file a suppression motion before defendant pled guilty, even if he felt it had a low chance of succeeding. In light of the evidence in the record, the only plausible conclusions are that defendant never asked Navarro to file a suppression motion and that Navarro never informed defendant that he could and would file one after defendant pled guilty. Defendant offers no other "intervening circumstances" or "newly discovered evidence" that provide him with a bona fide reason to withdraw his plea, nor does defendant identify any defects in the Rule 11 colloquy. See Ortega-Ascanio , 376 F.3d at 883. Consequently, the Court finds that defendant has failed to carry his burden of establishing that it would be "fair and just" for him to withdraw his plea. Defendant's plea was knowing and voluntary at the time it was made.

Moreover, even if the Court were to credit defendant's testimony, the Court finds that the Ninth Circuit's decision in United States v. Mayweather , 634 F.3d 498, 505-06 (9th Cir. 2010), controls the outcome here. Mayweather held that a defense attorney's decision not to pursue a suppression motion did not constitute a fair and just reason for withdrawing a guilty plea if the defendant was aware of the basis for the motion prior to pleading guilty. In so holding, the court noted the circuit's "longstanding interpretation of Rule 11(d)(2)(B) to allow plea withdrawal for any reason that did not exist when the defendant entered his plea.'" Id. at 506 (quoting United States v. McTiernan , 546 F.3d 1160, 1167 (9th Cir. 2008)) (emphasis in the original).

In Mayweather, the defendant pled guilty to possessing a firearm in furtherance of a drug trafficking crime. The Ninth Circuit found that the defendant could not withdraw his guilty plea due to his counsel's failure to file a motion to suppress the evidence of the firearm, because the defendant knew of this issue before his change of plea hearing and yet agreed to plead guilty anyway. See id. (holding that defendant "supplied the requisite pre-plea knowledge in his post-plea affidavit by stating that he had made it very clear to [his attorney] that he wanted to litigate his case, including a motion to suppress the [allegedly objectionable] search'"). The court found the defendant's silence during the plea colloquy to be dispositive, noting that "[w]hile... even a perfect Rule 11 colloquy does not preclude a later plea withdrawal, it is hardly a mere formality. A district court cannot be expected to accurately assess whether a plea is knowing and voluntary unless the defendant candidly conveys to the court what he knows." Id . Accordingly, the court held that "[the defendant's] decision at his plea proceeding not to bring the district court's attention to his alleged instruction to [his attorney] to challenge the validity of the search... preclude[d] him from establishing a fair and just reason for withdrawing his plea." Id.

Like the defendant in Mayweather, defendant unequivocally states in his affidavit that he knew about the basis for the alleged suppression motion prior to pleading guilty, but defendant did not bring this issue to the Court's attention at any time during the plea colloquy. See Chatman Decl. ¶ 2 ("I pleaded guilty based on representations from my former attorney, Angel Navarro, that he would, and I still could, file a motion to suppress evidence from the stop of the vehicle in which I was a passenger, despite my guilty plea."). Thus even if the Court were to credit the truth of this statement, defendant would not be entitled to the relief that he seeks; defendant knew of the grounds for the suppression motion he allegedly sought to bring before entering his guilty plea. Despite this purported knowledge, defendant stated numerous times during the plea colloquy that he had read and understood the terms of his plea agreement, that he had discussed potential affirmative defenses with his attorney, and that he was satisfied with the assistance that his attorney had provided. Accordingly, defendant's failure to call attention during his plea colloquy to his desire to challenge the validity of stop and search of the vehicle precludes him from establishing a fair and just reason for withdrawing his plea.


In accordance with the foregoing, defendant's motion to withdraw his guilty plea is hereby DENIED.


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