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U.S.A v. Perez-Avila

United States District Court, C.D. California

November 21, 2014

Ramiro Perez-Avila.


JOHN A. KRONSTADT, District Judge.


I. Introduction

On April 17, 2014, Ramiro Perez-Avila ("Defendant") pleaded guilty to a violation of 8 U.S.C. ยงยง 1326(a), (b)(2), Illegal Alien Found in the United States Following Deportation. Dkt. 22. On August 13, 2014, a Modified Presentence Report ("PSR") was filed. Dkt. 29. This report stated that Defendant's advisory guideline sentencing range is 46 to 57 months. PSR, Dkt. 29 at 10. On October 20, 2014, following the appointment of new counsel, Defendant filed a motion to withdraw his guilty plea (the "Motion"). Dkt. 47. The Government opposed the Motion. Dkt. 51. No reply was filed. A hearing on the Motion was conducted on November 13, 2014 and the matter was taken under submission. For the reasons stated in this Order, the Motion is DENIED.

II. Analysis

A. Legal Standard

A defendant may withdraw a guilty plea after it has been accepted and filed, but before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal." United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (citing Fed. R. Crim. P. 11(d)(2)(B)). "[T]he decision to allow withdrawal of a plea is solely within the discretion of the district court." Id. (brackets in original). "The defendant has the burden to show a fair and just reason for withdrawal of a plea." Id. "While the defendant is not permitted to withdraw his guilty plea simply on a lark, ' the fair and just' standard is generous and must be applied liberally." United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008) (internal citation omitted). "[E]ach case must be reviewed in the context in which the motion arose to determine whether, ultimately, a "fair and just" reason exists." Id. As McTiernan explained:

Although the terms "fair and just" lack any pretense of scientific exactness, guidelines have emerged in the appellate cases for applying this standard. Whether the movant has asserted his legal innocence is an important factor to be weighed, as is the reason why the defenses were not put forward at the time of original pleading. The amount of time which has passed between the plea and the motion must also be taken into account.

Id. (citing Fed. R. Crim. P. 32 advisory committee's note (1983)).

"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." Ortega-Ascanio, 376 F.3d at 883.

"Erroneous or inadequate legal advice may also constitute a fair and just reason for plea withdrawal, even without a showing of prejudice, when the motion to withdraw is made presentence." McTiernan, 546 F.3d at 1167. The defendant has the "burden [] to show that proper advice could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty had he known about the [grounds for a potential defense] prior to pleading." Id . (citing United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir.2005)). Where such a claimed, potential defense is "non-viable, " a failure by counsel to discuss it with a defendant prior to the entry of a guilty plea is not a "fair and just" reason to allow the defendant to withdraw it. Thus, such a hypothetical discussion "would not plausibly lead a reasonable person to decide not to plead guilty." United States v. Betts, 458 F.App'x 630, 632 (9th Cir. 2011); United States v. Davenport, 270 F.App'x 671, 673 (9th Cir. 2008).

The Ninth Circuit has concluded that a defense is "non-viable" where "[u]nder any reasoned analysis of the facts and circumstances of this case, " the requirements for the defense could not be met. Betts, 458 F.App'x at 632. In Betts, the defendant argued that he should be permitted to withdraw his guilty plea because his counsel had failed to inform him of a plausible due process defense. He argued that, such a defense was plausible because he was a "slight conspirator [in a bank robbery] who could not foresee the use of a firearm in the robbery." The Ninth Circuit rejected this argument, because "[u]nder any reasoned analysis of the facts and circumstances of this case, Betts' involvement in the bank robbery was more than slight.'" Id . Thus, the defense was non-viable.In Davenport, 270 F.App'x at 673, the defendant moved to withdraw his guilty plea, in part, "on the ground that Davenport was unaware of the illegal nature of child pornography." The Ninth Circuit rejected this argument, stating that "Davenport's counsel's failure to inform Davenport of the proffered defense based on ignorance of illegality cannot be faulted because the ignorance defense is not colorable." Id.

Furthermore, the "fair and just" standard is not met when a defendant has a change of heart, even if it is good faith. United States v. Ensminger, 567 F.3d 587, 593 (9th Cir. 2009). Nor is it met if the defendant later concludes that the Government's case has less force than he thought it had at the time the plea was entered. United States v. Showalter, 569 F.3d 1150, 1155-56 (9th Cir. 2009). That a sentence is more severe than anticipated at the time the plea was entered is also not generally recognized as a basis for its withdrawal. United States v. Briggs, 623 F.3d 724, 728 (9th Cir. 2010).

In considering a motion to withdraw a guilty plea, a defendant's testimony at a plea hearing conducted under Fed. R. Crim. P. 11 may be given greater weight than later, contrary assertions by the defendant as to the underlying matters. United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984) (court may credit defendant's testimony at Rule 11 hearing over defendant's subsequent allegations in an affidavit filed with her motion asserting that she only entered the guilty plea "because the government threatened to prosecute [her] as a special dangerous offender' if the case were tried"); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) ("Solemn declarations in open court carry a strong presumption of verity."). However, "the fact that a plea was voluntary, knowing, and intelligent cannot count against a defendant's attempt to withdraw it prior to sentencing, unless the defendant's only asserted "fair and just reason" for withdrawing the plea is lack of voluntariness itself." United States v. Garcia, 401 F.3d 1008, 1012 (9th Cir. 2005) (emphasis in original).

B. Application

1. Factual Claims

The basis for the Motion is that Defendant "does not think that he was adequately advised regarding his citizenship status, and he would have presented this issue at trial." Dkt. 45 at 4. Defendant now contends that he is a United States citizen, which is contrary to what he admitted during the Rule 11 colloquy and in the plea agreement. In support of this position, in his brief in support of the Motion he relies on two documents produced by the Government as part of the pre-plea discovery process. Each has language that supports the claim that Defendant is a citizen of the United States, and not a citizen of Mexico.

The first document is a report of Defendant's criminal history record that is from the California Law Enforcement Telecommunications System ("CLETS"). Ex. A, Dkt. 45 at 2. The abbreviation "US" appears under the term "Citizenship" in this report.

The second document consists of FBI records about Defendant. On the first page of these materials, under the heading "PLACE OF BIRTH (STATE OR COUNTRY), " the word "MEXICO" appears, and under the heading "COUNTRY OF CITIZENSHIP" the word "MEXICO" appears a second time. On the second page of these materials, the term "MEX" appears next to the headings: "Country of Birth, " and "Countries of Citizenship." Id. at 4. However, on each of two later pages, below the word "CITIZENSHIP, " the words "UNITED STATES" appear. Id. at 6. However, on the first of these pages, just above this reference and beneath the words, "BIRTH PLACE, " the word "MEXICO, " appears.

Additional documents were presented by Defendant at the hearing. Dkt. 55. Exhibit 1 is a letter dated September 5, 2014 from the Social Security Administration written in response to an inquiry about benefits for prisoners. The letter does not state that Defendant is a United States citizen. Exhibit 2 is summons for jury service sent to Defendant by the Riverside County Superior Court. It does not state that Defendant is a United States citizen. Exhibit 3 is a report Defendant believes to have come from a United States Immigrations and Customs Enforcement file. This report has the ...

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