Unpublished Disposition, 940 F.2d 670 (9th Cir. 1989)

MEMORANDUM^** 

Charles Pennington appeals his judgment of conviction and sentence for selling migratory bird parts under 16 U.S.C. § 703. We have jurisdiction under 28 U.S.C. 1291 and affirm in part and reverse and remand in part.

FACTS

In January 1987 appellant and a co-defendant, Shy, were charged in a four count indictment with selling migratory bird parts in violation of Title 16 U.S.C. § 703. Shy pleaded guilty and was sentenced on August 14, 1989. Also on August 14, but before Shy's sentencing, Pennington pleaded guilty to one count and the remaining count against him was dismissed. Appellant thereafter made a motion for release pending sentence which was denied.

Pennington was sentenced under the Federal Sentencing Guidelines. The presentence report calculated an offense level of ten, which included a two level increase based on the value of the birds sold. See Sentencing Guidelines Secs. 2Q2.1(a) (3) (A); 2F1. (b) (1). The applicable guideline range was 8-14 months.

On November 13 defendant appeared for sentencing and objected to the presentence report's valuation of the eagle carcasses. The judge continued sentencing to resolve the issue of accurate valuation. On November 17, three months after his co-defendant received a nine month sentence, defendant filed a motion to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 32(d). In that motion Pennington alleged he was not guilty and pleaded guilty only because he believed he would be released from custody if he did so.

The district court held a hearing on Pennington's motion to withdraw the guilty plea and held he had not made a sufficient showing for withdrawal of the plea. Appellant was then sentenced to twelve months.

Pennington challenges the denial of his motion to withdraw his guilty plea and the district court's determination that the value of the birds sold was between five and ten thousand dollars.

The denial of defendant's motion to withdraw his guilty plea is reviewed for abuse of discretion. United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990); United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir. 1985). Under Rule 32(d) the "defendant bears the burden of demonstrating a fair and just reason for withdrawal" of his guilty plea. Turner, 898 F.2d at 713. Like the defendants in Turner and United States v. Rio-Ortiz, 830 F.2d 1067, 1069 9th Cir. 1987), Pennington " [did] not challenge the adequacy of his Rule 11 hearing nor [did] he allege newly discovered evidence, intervening circumstances or any other reason for withdrawing his guilty plea that did not exist when he pleaded guilty." United States v. Hoyos, 868 F.2d 1131, 1141 (9th Cir. 1989) (per curiam).

Pennington asserts he is not guilty but entered the plea because he believed he would then be released from custody. At the Rule 11 hearing, however, defendant was asked whether he was guilty of the offense and he answered without qualification that he was. Moreover, there is no reason to believe Pennington did not understand his plea agreement was not conditioned on his release. Also, Pennington sought to withdraw his plea after learning his co-defendant received a nine month prison term. We have held a defendant who seeks to withdraw his plea after the sentencing of a co-defendant "is akin to that of a defendant who seeks to withdraw his plea after [his own] sentencing. Id. at 1141 (quoting United States v. Kay, 537 F.2d 1077, 1078 (9th Cir. 1976).

We hold the district court was within its discretion in finding Pennington had not asserted a fair and just reason to withdraw his plea.

Appellant argues the Guidelines were misapplied in this case. Pursuant to Sec. 2Q2.1(b) (3) (A), the district court applied a two point offense level increase because, it found, the value of the eagles sold in this case was at least $5000. Cross-referencing Sec. 2F1.1(b) (1).

The district court did not conduct its own inquiry into the proper valuation of the eagle carcasses. Rather it adopted the estimate of the value of the birds contained in the Presentence Report (PSR). The PSR found that the value of the three eagles was "between $5000 and $10,000." Although the valuation analysis is difficult to follow, apparently it is based on the value of: (1) $1500 for a mounted golden eagle; (2) $3000 for the sale of parts from a golden eagle. These figures are taken from a June 27, 1989 letter from the Department of Interior.

The Department letter, in fact, contains a range of perhaps contradictory figures to be employed in valuing the eagles. It states: "A whole mounted eagle can be worth from $1,500 to $10,000. When buying whole fresh eagles, prices will vary from $300 to $1,000 a piece." The letter continues that a bird sold for its parts is worth about $2,500,¹  that war bonnets with eagle tail feathers may be worth as much as $10,000, and, in conclusion, that four golden eagles are worth from $1,200 to $12,000.

Pennington objected to the valuation contained in the PSR. He argued that the proper value, for sentencing purposes, is $875, the price paid by the agent who purchased the eagles. Appellant also challenged the use of mounted eagles, or of eagle parts in assessing the proper value of the birds. He makes an identical argument in this appeal.

We review the district court's interpretation of the Guidelines de novo. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir. 1990). The district court's findings of fact are reviewed for clear error and due deference is given to the district court's application of the guidelines to the facts. Id.

Where market value is difficult to ascertain, a district court may use any reasonable method to measure the loss under Section 2F1.1. 900 F.2d at 1356. The Commentary to Guidelines section 2F1.1 states: "The district court need only make a reasonable estimate of the range of loss given the available information."

On the present record we cannot discern whether the offense level increase was permissible. The district court, declining to conduct an evidentiary hearing, simply adopted the haphazard analysis of the PSR. There is no explanation by the court why, for example, the price paid for the three eagles in what appears to have been an arms length transaction should not, as Pennington argues, constitute the fairest valuation or, at least, be considered in the valuation method. Moreover, the Interior letter states very clearly the price of a whole eagle varies from $300 to $1,000. Why then did the district court adopt the PSR valuation of $2,500 per bird?²  Because the district court did not conduct its own analysis, and because the analysis on which it relied is ambiguous, we cannot say the valuation method here was reasonable.

We therefore reverse the sentence in this case and remand for further proceedings regarding valuation and the two point offense level increase based upon valuation.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.