Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Dennis M. FERGUSON, Defendant-Appellant.

No. 88-1092.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


Dennis M. Ferguson appeals the district court's denial of his motion to withdraw his guilty plea, which motion was made prior to sentencing. Appellant pleaded guilty to a single count of the misuse of federal funds in violation of 18 U.S.C. § 641 pursuant to a plea bargain.

Appellant was originally indicted for twelve counts of conversion of federal funds in violation of 18 U.S.C. § 641 and three counts of false statements in violation of 18 U.S.C. § 1001. Prior to accepting appellant's guilty plea, the district court apprised him of the rights that he relinquished by pleading guilty. The court also inquired whether appellant had been coerced into pleading guilty or had been promised anything in exchange for his guilty plea. Appellant denied the existence of any promises or coercion.

Nevertheless, shortly after pleading guilty, appellant moved to withdraw his plea. Appellant contended that because he and his wife were faced with related charges in state court and entered guilty pleas there because of the presence of Hannah priors, see State v. Hannah, 126 Ariz. 575, 576-77, 617 P.2d 527, 528-29, his federal plea had been coerced.1  Appellant does not contend, however, that the United States Attorney or any other federal agent coerced him to plead guilty.

We review the district court's decision for abuse of discretion. United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988); United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986). Where a defendant alleges that his guilty plea is involuntary because of charges threatened to be brought against a third-party, the district court "should make a more careful examination of the voluntariness of a plea." United States v. Castello, 724 F.2d 813, 815 (9th Cir.), cert. denied, 467 U.S. 1254 (1984).

The district court did not abuse its discretion in denying appellant's motion. Although appellant asserted that his plea was coerced because of the charges brought against his wife in state court and because of the presence of the Hannah priors, he offered no evidence, not even his own affidavit, to support his contentions. Thus, there is no evidence in the record to contradict his statements of lack of coercion made prior to entry of his guilty plea.

Moreover, at the hearing on the motion to withdraw, the district court inquired at length as to any bases for withdrawal of the guilty plea. Appellant offered nothing other than the bare fact of the state charges and the Hannah priors. The district court properly concluded that there was no fair and just reason upon which to permit appellant to withdraw his guilty plea.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The Arizona Supreme Court held in State v. Hannah that a previous conviction could be used for sentence enhancement where the conviction did not occur prior to commission of the principal offense. 126 Ariz. at 576-77; 617 P.2d at 528-29