The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
) ORDER DENYING EACH ) DEFENDANT'S MOTION TO WITHDRAW PLEA AND SCHEDULING CARR, SENTENCING HEARING
Each Defendant moves under Federal Rule of Criminal Procedure ("Rule") 11(d)(2)(B) to withdraw his or her guilty plea entered on February 17, 2012. Defendant Theresa Carr also seeks "to make an untimely objection to the pre-sentence report" in the event that her plea agreement is vacated. (Theresa Carr's Mot. to Allow Untimely Objection & Mot. to Withdraw Plea ("T.C.'s Mot.") 1:19-21, 2:1-3, ECF No. 92.)
The government argues each Defendant has expressly waived the right to file a motion to withdraw his or her guilty plea. (Gov't Mot. to Preclude Robert Carr from Renewing Mot. to Withdraw Guilty Pleas ("Gov't Mot.") 1:24-2:1, ECF No. 93; Gov't Opp'n to Defs.' Mots. ("Gov't Opp'n") 13:14-17, ECF No. 102.) The government also opposes each plea withdrawal motion on its merits, arguing, inter alia, that each Defendant has not met his or her burden of showing a "fair and just reason" for withdrawing the guilty plea. (Gov't Opp'n 2:1-3, 13:20-25.)
For the below-stated reasons, neither Defendant has shown a "fair and just reason" to withdraw his or her guilty plea. Therefore, each Defendant's motion to withdraw his or her guilty plea is DENIED, and decisions on the government's waiver arguments and Theresa Carr's motion to allow untimely objections to the pre-sentence report are unnecessary.
Rule 11(d)(2)(B) provides: "[a] defendant may withdraw a plea of guilty . . . 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."
"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). "The defendant has the burden to show a fair and just reason for withdrawal of a plea." Id.
"'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 [or her] plea.'" United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005) (quoting United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004)).
Mr. Carr argues he should be permitted to withdraw his guilty plea because "he entered his guilty plea under duress, not thinking clearly, knowing his then attorney [Michael Long] was not prepared to go to trial a few weeks later, and not believing he had any other viable option." (Robert Carr's Mot. ("R.C.'s Mot.") 7:8-12, ECF No. 90.) Mr. Carr further argues: "[b]ecause of [Mr. Long's] ineffectiveness, lack of preparation for trial, and improper coaching and advice to Mr. Carr as to how to answer the Court's specific inquiries, [his] guilty plea w[as] not made knowingly, intelligently, or voluntarily." (Id. at 9:12-14.)
Mr. Carr filed a declaration in support of his motion, in which he declares that he and his wife "are innocent of all charges alleged against [them,]" Mr. Long did not adequately investigate "the facts and circumstances . . . which demonstrate [his] innocence[,]" and "[f]rom the outset, [Mr. Carr] never agreed with Mr. Long's assessment of [his] case." (Robert Carr Decl. ¶¶1, 4, 11; ECF No. 90-1.) Mr. Carr avers that "[he] prodded [Mr. Long] carefully about his trial preparation and knowledge of the case[, and Mr. Long] clearly was not ready to go to trial." (Id. at ¶19.) Mr. Carr also declares that he did not see a copy of the plea agreement until the morning of his change of plea hearing, he did not "have time to read the entire plea agreement[,]" and that he was "heavily sedated with muscle relaxers and Vicodin" that morning. (Id. at ¶¶22, 29.) Further, Mr. Carr avers that he told Mr. Long on the morning of his change of plea hearing that he was medicated and "not thinking clearly," and that Mr. Long "coached" him to deny taking any medication during the plea colloquy. (Id. at ¶30.) In essence, Mr. Carr declares that he "entered his [guilty plea] against [his] best judgment, under the duress of all the circumstances of the moment, in pain, and not thinking clearly." (Id. at ¶40.)
The government rejoins that Mr. Carr "has not met his burden of showing a fair and just reason for withdrawing the guilty plea as his proffered reasons are based on false information and lies." (Gov't Opp'n 2:1-3.) Mr. Long prepared a declaration in support of the government's opposition, in which he "emphatically den[ies] that [he] . . . was ineffective as [Mr.] Carr's defense counsel and was not prepared for trial; . . . knew that [Mr. Carr] was under the influence of any medication at his change of plea hearing; and/or . . . advised him to hide the purported fact that he was under the influence of medication . . . during the change of plea hearing." (Long Decl. ¶5, ECF No. 102-1.) In his declaration, Mr. Long identifies his theory of defense and details his efforts to defend Mr. Carr. (Id. at ¶¶6-21, 23-25, 28-30.) Mr. Long also describes in his declaration the plea agreement negotiations with the government's counsel, Mr. Wong, and his communication with Mr. Carr concerning those negotiations. (Id. at ¶¶22, 26-27, 32-44.)
Mr. Carr's proffered reasons to withdraw his plea do not meet the "fair and just reason" standard. Although "[e]rroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal," United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008), Mr. Carr has not shown that "the advice he received from [Mr. Long] was not within the range of competence demanded of attorneys in criminal cases." United States v. Hiett II, 220 Fed. Appx. 638, 638 (9th Cir. 2007). Mr. Carr's declaration does not provide any facts to support his conclusory statements that Mr. Long was unprepared for trial and/or conducted an inadequate investigation. See United States v. Gonzalez-Rodriguez, 395 Fed. Appx. 443, ...