Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Francis Joseph Poole appeals his conviction following his guilty plea to one count of bank robbery in violation of 18 U.S.C. § 2113(a). Poole contends that the district court erred by denying his motion to withdraw his guilty plea under Fed. R. Crim. P. Rule 32(d) because the plea was involuntary in that it was based on ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Hoyos, 892 F.2d 1387, 1399 (9th Cir. 1989). "We review independently and nondeferentially a claim that a guilty plea was involuntary." United States v. Turner, 881 F.2d 684, 685 (9th Cir. 1989). A claim of ineffective assistance of counsel is a mixed question of law and fact which we review de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986).

Although a defendant does not have the right to withdraw a guilty plea, the district court may permit withdrawal of the plea prior to sentencing when there is a "fair and just" reason for doing so. Fed. R. Crim. P. 32(d); United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985). The defendant has the burden of showing that a fair and just reason exists and that the district court abused its discretion by refusing to permit withdrawal of the plea. United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988); Read, 778 F.2d at 1440. " [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 that result." United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990). In addressing the potential sentence at the plea hearing, and to comply with Fed. R. Crim. P. Rule 11, the district court need only advise the defendant of the maximum statutory penalty and the implications of sentencing under the Sentencing Guidelines. United States v. Selfa, 918 F.2d 749, 752 (9th Cir. 1990).

To establish a claim of ineffective assistance of counsel, the defendant must show that defense counsel's performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, 446 U.S. 668, 687 (1984). The Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). Defense counsel's inaccurate prediction concerning sentencing, without more, does not constitute ineffective assistance of counsel. United States v. Turner, 881 F.2d 684, 687 (9th Cir. 1989).

Here, Poole's counsel did no more than erroneously predict Poole's sentencing range.¹  Furthermore, the district court informed Poole at the plea hearing that it did not know what the guidelines range would be in this case and that by pleading guilty Poole faced a maximum sentence of twenty years in prison. Therefore, this erroneous prediction is not a fair and just reason to withdraw his guilty plea. See Garcia, 909 F.2d at 752.

Poole argues only that his counsel erroneously predicted the sentencing range, which, by itself, does not constitute ineffective assistance. See Turner, 881 F.2d at 687. Applying the Strickland test, even if Poole's counsel rendered deficient performance by significantly underestimating the guidelines range, Poole does not establish prejudice. Poole entered his guilty plea knowing that, regardless of the applicable guidelines range, he faced a maximum sentence of twenty years imprisonment. Moreover, before he pled guilty, Poole also knew that the district court could depart upward from the applicable guidelines range.

Thus, the district court did not abuse its discretion by denying Poole's motion to withdraw his guilty plea. See Garcia, 909 F.2d at 1348; Turner, 881 F.2d at 687.

AFFIRMED.