Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^** 

On this appeal, Sandoval argues that the district court (1) should not have denied his motion to withdraw his guilty plea, and (2) should have found him to be a minor participant and reduced his sentence accordingly.

We review the district court's decision to deny defendant's motion to withdraw his guilty plea for abuse of discretion. United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990). Defendant must show that a "fair and just reason" existed for withdrawal of his guilty plea. Fed. R. Crim. P. 32(d).

Defendant claims that his attorney misrepresented his possible sentence, and that defendant's reliance on this misrepresentation constituted a fair and just reason for withdrawal of his plea. Defendant's attorney denied making the misrepresentation. The district court considered the defendant's testimony, the lawyer's testimony, and the defendant's conduct at the Rule 11 proceeding when he entered his guilty plea. The court found that "there was no misleading ... information given to the defendant that did not allow him to knowingly give a plea in this matter," and that defendant had simply changed his mind about pleading guilty. Government's E.R. at 80. We review the district court's findings of fact for clear error. It was not clearly erroneous for the district court to credit defendant's testimony at the time he entered his plea over his subsequent testimony at the change of plea hearing. See United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984). Based on these facts, the district court did not abuse its discretion in denying the motion to withdraw the guilty plea. See United States v. Hoyos, 868 F.2d 1131, 1142 (9th Cir. 1989).

We review the district court's decision that defendant is not a "minor participant" under the sentencing guidelines for clear error. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). The district court need not consider whether the defendant was the least culpable participant in determining whether or not defendant's role was minor. United States v. Rexford, No. 89-10199 (9th Cir. June 29, 1990). The district court found that defendant "was the original participant who arranged for and got the whole thing put together and started the ball rolling." Government's E.R. at 84. In view of defendant's numerous meetings with undercover DEA agents for the purpose of arranging two separate drug transactions, and his role in introducing the DEA agent to the drug supplier, the district court's determination that he was not a minor participant was not clearly erroneous.

AFFIRMED.