KIMBERLY J. MUELLER, District Judge.
Maria Sefora Santa ("defendant") moves for stay of sentence pending appeal. ECF No. 397. The court heard argument on December 18, 2013, with Matthew Segal appearing for the government and Alin C. Cintean appearing for defendant. The court took the matter under submission and, as set forth below, now DENIES the motion.
Defendant's motion is governed by 18 U.S.C. § 3143(b). See, e.g., United States v. Ali, No. CR 02-40081 CW, 2011 WL 588143, at *1 (N.D. Cal. Feb. 10, 2011) (applying 18 U.S.C. § 3143(b) to request for stay of sentence where defendant had been convicted and sentenced). Section § 3143(b) requires detention of a defendant who has been convicted and sentenced, unless the court finds an exception to exist. Exceptions exist where the court finds: (1) by clear and convincing evidence that the defendant is not likely to flee or pose a danger to others; (2) that the appeal is not being taken for delay; and (3) that the appeal "raises a substantial question of law or fact likely to result in... reversal, ... an order for a new trial, ... a sentence that does not include a prison term, or... a reduced sentence to a term of imprisonment less than the total time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b). "A substantial question' is one that is fairly debatable or fairly doubtful." United States v. Wheeler, 795 F.2d 839, 840 (9th Cir. 1986) (quoting United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985)). As the moving party, defendant bears the burden of establishing that such an exception exists. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990).
Defendant asserts she meets each of the requirements necessary for stay of sentence. She argues her appeal presents a substantial question because her guilty plea was: (1) not knowing; (2) not voluntary; and (3) the result of ineffective assistance of counsel. For these reasons, defendant insists the court, in violation of her substantial rights, improperly accepted the plea.
Before accepting a guilty plea, the court is to take certain precautionary measures. FED. R. CRIM. P. 11(b)(1). The court must: (1) "[a]dvis[e] and [q]uestion" the defendant regarding rights and waiver thereof, id. 11(b)(1); (2) ensure "the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement), " id. 11(b)(2); and (3) "develop, on the record, the factual basis for the plea, " id. 11(b)(3). "Whether the plea is voluntary and intelligent is the touchstone for.... acceptance of a guilty plea." United States v. Caro, 997 F.2d 657, 659 (9th Cir. 1993).
Defendant first argues the court's acceptance of her guilty plea was improper because "she was incompetent at the time of her change of plea hearing and was not physically or emotionally able to give a knowing and constitutionally sufficient plea...." Def.'s Mot. to Stay Sentence ("Mot.") at 5, ECF No. 401. To support her assertion, she cites a declaration from Dr. Andrei Novac, ECF No. 398, and an excerpt of the transcript from the change-of-plea hearing, ECF No. 383 at 5:7-16. Id. Having carefully considered defendant's argument and reviewed the record of the plea colloquy, the court rejects the argument.
As an initial matter, the court declines to consider the Novac declaration because documents "submitted to the district court after the [challenged] ruling... should be stricken from the record on appeal." United States v. Blinder, 10 F.3d 1468, 1477 (9th Cir. 1993). Here, defendant filed the Novac declaration on December 6, 2013. She entered her guilty plea more than a year earlier, on November 14, 2012, at which time the court adjudged her guilty. Thus, because the declaration was submitted after the ruling, it is disregarded. As the declaration will not be considered on appeal, it necessarily fails to raise a substantial question.
Defendant's citations to the record are similarly unavailing. Citing to the change-of-plea hearing transcript, defendant contends there is "evidence indicating that [defendant] was receiving medical treatment for serious psychiatric illnesses prior to and during the plea agreement, " Mot. at 6, and that "she had not taken her psychiatric medications at least 24 hours before" the hearing. Id. Defendant thus concludes she "demonstrated objective signs to the [c]ourt... that she might be mentally incompetent to enter a plea." Id.
The relevant excerpts read as follows:
THE COURT: Have you been treated for any mental condition or psychiatric illness?
DEFENDANT: For depression I'm currently on... medication.
THE COURT: For how long have you been treated for that condition?
DEFENDANT: I'm not sure on the timeframe.... I don't really ...