Unpublished Disposition, 917 F.2d 567 (9th Cir. 1990)

No. 89-10336.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and MUECKE, District Court Judge^* 

MEMORANDUM^** 

Appellant, Robert Scott, appeals his conviction by guilty plea of 21 U.S.C. § 841(a) (1) and 21 U.S.C. § 846 for conspiracy to distribute cocaine base. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Scott and codefendant, David Haynes ("Haynes"), were arrested on various drug charges. A seven count indictment was filed against both defendants on August 12, 1988. Scott was charged in five of the seven counts.

On October 24, 1988, codefendant Haynes pled guilty to Count I (21 U.S.C. § 841(a) (1) and Sec. 846), conspiring to distribute more than four-hundred (400) grams of cocaine base. On February 8, 1989, Scott withdrew his plea of not guilty and also entered a plea of guilty to Count I. The other four counts (III, V, VI and VII) were dismissed.

On March 28, 1989, Scott's counsel filed a motion to withdraw guilty plea and a second motion to relieve counsel.¹  (SER²  at 7-9). Scott withdrew his second motion to have his counsel replaced on April 19, 1989.

On May 31, 1990, the District Court heard oral argument on Scott's motion to withdraw guilty plea and orally denied it. On June 8, 1989, the District Court issued a formal order denying Scott's motion to withdraw guilty plea. Order of June 8, 1989.

On June 21, 1989, Scott was sentenced to 108 months imprisonment on Count I. The trial court calculated the offense as a level 34 based on the type and amount of the drugs. Before any reductions, Scott was subject to a guideline range of 121 to 153 months. Scott received a two level reduction for his role in the offense and an additional two level reduction for acceptance of responsibility. After the reductions Scott's final guideline range was 108 to 135 months. Scott received the minimum sentence (108 months) under this guideline range. Scott's request for a downward departure was denied.

Scott alleges that the District Court incorrectly denied his motion to withdraw guilty plea in that his plea was constitutionally inadequate because it was based on ineffective assistance of counsel. Scott also argues that the trial court abused its discretion in denying his motion to withdraw guilty plea under Rule 32(d) of the Federal Rules of Criminal Procedure and that the trial court did not comply with the requirements of Federal Rule of Criminal Procedure 11. Finally, Scott claims that there was a defect in the plea bargain process that voided the plea bargain.

The District Court denied Scott's motion to withdraw guilty plea, finding that Scott was fully advised that he could receive a maximum sentence of twenty years and that Scott acknowledged at the Rule 11 questioning that he understood that the Court had the power to impose such a sentence. Order of June 8, 1989, at 2. The court concluded that Scott's plea was entered intelligently and that whatever erroneous information he received from his counsel regarding the Sentencing Guidelines was vitiated by the Court's advising him that he could receive a twenty-year sentence. Id.

DISCUSSION

I. Whether the District Court's Refusal to Allow Scott to Withdraw his Guilty Plea was an Abuse of Discretion.

This Court reviews a district court's decision to grant or deny a motion to withdraw a guilty plea for abuse of discretion. United States v. Hoyos, 892 F.2d 1387, 1399 (9th Cir. 1989); United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir. 1985). However, where, as here, a defendant claims that his or her plea was involuntary, the standard of review is one of an independent and non-deferential nature. United States v. Turner, 881 F.2d 684, 685 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 199 (1989).

A defendant has no "right" to withdraw his or her plea. United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied, 479 U.S. 835, 107 S. Ct. 131 (1986). Although a trial judge may freely allow withdrawal of a guilty plea prior to sentencing when there is a "fair and just" reason for doing so, Fed.R.Crim.P 32(d), "the burden of showing such a reason rests with the defendant." Id.

B. Whether Scott's guilty plea was voluntary.

A guilty plea is valid so long as it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). A lower court's findings as to the voluntariness of a guilty plea will not be disturbed unless clearly erroneous. Read, 778 F.2d at 1440.

Scott claims he was provided with ineffective assistance of counsel that rendered his plea involuntary. According to Scott, his attorney advised him that he was facing a sentence under the Sentencing Guidelines of 51 to 63 months. This computation was in error because Scott's counsel mischaracterized the narcotic as cocaine rather than cocaine base as charged in the indictment. Scott actually was subject to a sentencing range of 121 to 153 months. According to Scott, counsel's mistaken advice concerning the guideline range constitutes ineffective assistance of counsel.

An ineffective assistance of counsel claim is a mixed question of fact and law, reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). To establish ineffective assistance of counsel, Scott must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The two-part Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985). Scott must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases. 474 U.S. at 56, 106 S. Ct. at 369.

This Court recently held that a defense counsel's inaccurate prediction of sentence, without more, does not constitute ineffective assistance of counsel. United States v. Turner, 881 F.2d 684, 687 (9th Cir. 1989). In Turner, defendant was informed that the maximum penalty he could receive was twenty (20) years. Id. at 686. Although defendant was sentenced to only nine months more than his counsel predicted, the Turner Court noted that the sentence "was well below the statutory maximum of 20 years." Id. at 687. In the instant case, counsel advised Scott that he would be subject to a sentencing range (51 to 63 months) that was less than half of the actual sentencing range (121 to 153 months). Although Scott received a sentence that was more than double of what his attorney predicted, the sentence he received (9 years) was well below the statutory maximum of twenty years.

Further, since Scott entered his plea knowing that he could receive twenty years, the applicability of any particular guideline range seems less significant. There is no doubt that Scott's guideline range was substantially affected by the narcotic involved, i.e., cocaine base. Still, regardless of whether the narcotic was cocaine or cocaine base, Scott would still be subject to a maximum sentence of twenty years. Under these circumstances, even if counsel's performance was deficient, Scott cannot establish prejudice, especially since the sentence he received was significantly less than the maximum sentence. The lower court advised Scott on several occasions that he could receive the maximum penalty, twenty year imprisonment, and on each occasion Scott said he understood. (SER at 23-24). Scott was also advised that although he would be sentenced under the Sentencing Guidelines, the court could, regardless of what the guidelines were, depart above them. Scott again stated that he understood. Id. at 27.

In short, the action of Scott's counsel was, at most, a mere inaccurate prediction that, standing alone, does not constitute ineffective assistance of counsel. See Turner, 881 F.2d at 684. Even if counsel's performance was deficient, Scott has not shown that he was prejudiced by the mistaken advice since the lower court informed him of the maximum possible sentence--which was the same for both guideline ranges--before he pled guilty. See United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987), cert. denied, 484 U.S. 832, 108 S. Ct. 107 (1988); Chua Han Mow v. United States, 730 F.2d 1308 (9th Cir. 1984), cert. denied, 470 U.S. 1031, 105 S. Ct. 1403 (1985).

C. Whether the District Court Abused its Discretion in Denying Scott's Motion to Withdraw Guilty Plea Pursuant to Fed. R. Civ. P. 32(d)

As indicated earlier, although a trial judge may freely allow withdrawal of a guilty plea prior to sentencing when there is a "fair and just" reason for the withdrawal, Fed.R.Crim.P 32(d), "the burden of showing such a reason rests with the defendant." Read, 778 F.2d at 1440.

Again, the basis of Scott's claim is that he was misinformed by his counsel as to the applicable guideline range. " [I]t is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea. (citation omitted). The fact that defendant was sentenced under the Guidelines does not change the result." United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990).

Scott argues that the fact that he was misinformed as to the applicable guideline range by his attorney is more than "any just reason" and the District Court abused its discretion in denying his motion to withdraw guilty plea. Appellant's Brief, at 23. Scott relies on Iaea, supra, a case where counsel advised defendant that he was subject to Hawaii's minimum sentencing law, that there was almost no chance of receiving an extended or life sentence, and that he had a chance to receive probation if he pled guilty. 800 F.2d at 864. In Iaea, counsel's advice that defendant might receive an extended or life sentence was practically non-existent and his advice concerning whether defendant could receive probation was "faulty." Id. at 865. In addition, counsel was mistaken in advising defendant that he was subject to Hawaii's minimum sentencing law because the law, by its terms, did not apply to defendant. Id. at 864-65. The Court found that "the gross mischaracterization of the likely outcome presented in this case, combined with the erroneous advice on the possible effects of going to trial, falls below the level of competence of defense attorneys." Id. at 865.

In this case, the actions of Scott's counsel constitute no more than an inaccurate prediction. Further, even if the inaccurate prediction were a "fair and just" reason to withdraw the guilty plea, the fact remains that the lower court informed Scott that it had no idea what the guidelines were going to be. (See SER at 26-27). This put Scott on notice concerning the applicability of any particular guideline range. The Court also advised Scott that the maximum penalty he could be subject to was twenty (20) years. (SER at 24). " [U]nder the Guidelines, the district court regrettably is usually not in a position at the time of a plea to advise the defendant with any precision as to the range within which the sentence might fall." United States v. Selfa, No. 89-10309, slip. op. 6082 (9th Cir. June 14, 1990). Therefore, this Court has held that it is sufficient to advise defendant of the maximum statutory penalty and the implications of sentencing under the Sentencing Guidelines. Id.; see Turner, 881 F.2d at 687; see also United States v. Sweeney, 878 F.2d 68 (2nd Cir. 1989) (per curiam), (Court held that since the defendant had been advised of the statutory maximums he had no right to withdraw his plea merely because of his counsel's mistaken estimate and that defendant was not entitled to use Rule 32(d) to test whether he would get an acceptably lenient sentence). Here, since Scott was advised of the statutory maximums, he cannot rely on his counsel's inaccurate prediction as a basis to withdraw his plea.

II. Whether the District Court Complied with the Requirements of Rule 11 of the Federal Rules of Criminal Procedure

Scott contends that the District Court's decision is erroneous because his guilty plea violated Rule 11 of the Federal Rules of Criminal Procedure in that the "district court did not inform appellant of the mandatory minimum penalty provided by law." Appellant's Brief, at 24. This argument is meritless.

Scott pleaded guilty to Count I of the indictment. In this count it was alleged that beginning "not later than July 1, 1988, and continuing thereafter, up to and including August 8, 1988 ..." Scott conspired to distribute more than 400 grams of cocaine base in violation of 21 U.S.C. §§ 841(a) (1) and 846. At the time of this alleged conspiracy, there was no mandatory minimum sentence applicable to it. The mandatory minimum sentence for such a conspiracy was enacted November 18, 1988.

III. Whether there were Alleged Defects in the Plea Bargain Process and, if so, Whether they Voided the Plea Bargain Process

What the parties agreed to concerning a plea agreement "is a question of fact to be resolved by the district court." United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980); Read, 778 F.2d at 1441. Scott has waived this argument because he did not raise it in the lower court. An issue not raised at the district court level will not be considered on appeal. See United States v.Grewal, 825 F.2d 220, 223 (9th Cir. 1987).

IV. The District Court's Refusal to Grant a Downward Departure

Scott's guideline range was between 108 and 135 months. Scott's sentence (108 months) was clearly within the guideline range. Scott asserts that the trial court erred when it failed to depart below his guideline range.

This Court has no appellate jurisdiction to review a trial court's refusal to exercise its discretion to issue a downward departure from the sentencing guidelines. United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990); United States v. Reed, No. 89-10284, slip op. 11519 (9th Cir. September 18, 1990).

CONCLUSION

AFFIRMED.