Unpublished Disposition, 860 F.2d 1090 (9th Cir. 1988)

No. 88-1027.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS, DAVID R. THOMPSON and JOHN M. WISDOM,^*  Circuit Judges.

MEMORANDUM^** 

After three days of trial, appellant Vicente Guerra pleaded guilty to engaging in a drug related continuing criminal enterprise in violation of 21 U.S.C. § 848. Following the plea, but before final sentencing, he moved pro se to withdraw the plea pursuant to Federal Rule of Criminal Procedure 32(d). In support of the motion Guerra stated he received ineffective assistance of counsel and that his plea was involuntary because of his lawyer's alleged conflict of interest in representing the business interests of a codefendant. After counsel was appointed to represent Guerra, a hearing on the motion to withdraw the guilty plea was held. The district court denied the motion and Guerra appeals.

We review the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir. 1985). Rule 32(d) of the Federal Rules of Criminal Procedure states the district court may permit the presentence withdrawal of a guilty plea "upon a showing by the defendant of any fair and just reason."

"Most courts have relied on dictum in Kercheval v. United States, 274 U.S. 220, 224 (1927), to define the fair and just standard.... [S]ee, e.g., United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir. 1980); United States v. Webster, 468 F.2d 769, 771 (9th Cir. 1972), cert. denied, 410 U.S. 934 (1973)." United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987). Kercheval stated that a court shall "vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence." 274 U.S. at 224.

The burden of showing a "fair and just" reason for withdrawal of a guilty plea rests with the defendant. United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied, 107 S. Ct. 131 (1986). The defendant has no "right" to withdraw his guilty plea. United States v. Castello, 724 F.2d 813, 814 (9th Cir. 1984). " 'The Government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of a guilty plea....' " Read, 778 F.2d at 1440 (quoting United States v. Saft, 558 F.2d 1073, 1083 (2d Cir. 1977)).

Guerra does not raise the conflict of interest argument on appeal. He contends here for the first time that because a Spanish interpreter is credited with persuading him to plead guilty "a distinct possibility exists he received wrong advice." When a defendant raises an issue on appeal that was not raised before the district court, we apply a plain error standard of review. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). The allegation of receiving wrong advice amounts to one of ineffective assistance of counsel. See Rubalcaba, 811 F.2d at 494. "Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986).

The district court held a full hearing on Guerra's motion. His lawyer, Mr. Barfield, who represented Guerra during the plea negotiations, testified that although the Spanish interpreter "takes credit for convincing Mr. Guerra to make the plea," Barfield and Guerra discussed for over a year whether Guerra should plead. Barfield communicated to Guerra his belief that he would be convicted on the drug trafficking counts and, depending on the evidence, on the continuing criminal enterprise count as well. Guerra agreed the chances were good he would be convicted. The decision to plead guilty was made after Guerra had heard three days of testimony from government witnesses. In exchange for Guerra's plea, the government agreed to dismiss the remaining nine counts which included conspiracy to distribute and distribution of drugs.

Guerra's speculation that he may have received wrong advice is neither supported by the record nor constitutes a fair and just and reason for withdrawal of the plea. The record indicates Guerra pleaded guilty after considering his lawyer's competent advice. Guerra fails to demonstrate that Barfield's representation either fell below an objective standard of reasonableness or prejudiced him. See Strickland v. Washington, 466 U.S. 668, 688 (1984).

Guerra next contends that during the change of plea he was confused as to the meaning of the supervising element of a continuing criminal enterprise. This allegation can be characterized as both an ineffective assistance of counsel claim and an involuntary plea claim. See Rubalcaba, 811 F.2d at 494. The voluntariness of a plea entered on the advice of counsel depends on whether counsel's advice " 'was within the range of competence demanded of attorneys in criminal cases.' " Hill v. Lockhart, 474 U.S. 52, 56 (quoting McMann v. Richardson, 397 U.S. 759 (1970)).

Guerra initially disputed the government's factual recital that he supervised five people and received thousands of dollars in connection with the criminal enterprise. However, after a five minute recess during which Barfield spoke with his client, Guerra acknowledged that he supervised and organized people connected with the criminal enterprise and that he dealt in sums of money in excess of $10,000 or $15,000. Moreover, Guerra acknowledged that he understood the government's factual recital and the advice given by his lawyer. The record belies Guerra's assertion that he was confused about what he was pleading guilty to and that the plea was involuntary.

Also, the record demonstrates the district court fully complied with the requirements by Fed. R. Crim. P. 11 which is designed to ensure that the criminal defendant exactly understands what the plea means. United States v. Rios-Ortiz, 830 F.2d 1067, 1070 (9th Cir. 1987). After lengthy questioning by the court, Guerra stated unequivocally that he understood the elements of the charge and that he understood and accepted his attorney's advice to accept the plea. The plea was knowing and intelligent and made with the assistance of competent counsel.

Finally, Guerra contends he demonstrates a fair and just reason for withdrawing his plea because he told his lawyer he wanted to withdraw the plea only days after entering it. We have not "overturned a denial of a motion to withdraw a guilty plea absent something more than the defendant's change of mind." Id. Guerra fails to demonstrate nothing more than a change of mind. We find no fair and just reason for withdrawing the plea as it was fairly obtained without ignorance, fear or inadvertence.

The conviction is AFFIRMED.