United States of America, Plaintiff-appellee, v. David J. Kay, Defendant-appellant, 537 F.2d 1077 (9th Cir. 1976)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 537 F.2d 1077 (9th Cir. 1976) June 23, 1976

Richard G. Sherman (argued), Los Angeles, Cal., for defendant-appellant.

John Vandevelde, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.


Before BARNES, HUFSTEDLER and CHOY, Circuit Judges.


We do not think that the district court abused its discretion in refusing to permit Kay to withdraw his guilty plea. Kay did not attempt to withdraw his plea until after his codefendants had been sentenced. At that time he realized that adherence to his plea bargain would result in his imprisonment. Under these circumstances, his situation is akin to that of a defendant who seeks to withdraw his plea after sentencing. The district judge could reasonably have concluded that withdrawal of the plea would have permitted 'appellant to use the guilty plea as a means of testing the weight of the potential sentence--a primary policy ground for denying plea changes.' United States v. Simmons, 497 F.2d 177, 179 (5th Cir. 1974).

We find no merit to Kay's contention that he was inadequately represented by his counsel.