Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

MEMORANDUM^** 

We affirm the judgment and conviction of Furukawa for conspiracy to distribute heroin. 18 U.S.C. § 841(a) (1). We find without merit his contention that (a) the district court erred in denying a motion to withdraw a guilty plea and (b) he was denied effective assistance of counsel.

FACTS AND PROCEDURES

Furukawa was indicted on five counts of distributing and conspiring to distribute heroin during April and May of 1983 in violation of 21 U.S.C. § 841(a) (1). He pleaded not guilty. In September 1987, being represented by Attorney Erick Moon, he pleaded guilty to count III pursuant to a plea agreement. Judge Keep presided over a Rule 11 hearing and accepted Furukawa's guilty plea, having determined that the plea was voluntary.

In January 1988, at sentencing, Furukawa appeared with a new attorney, Benjamin Cassiday, and informed the court that he would move to withdraw his guilty plea. He had waited until he learned that a codefendant had been acquitted. The court vacated sentencing and scheduled a hearing to determine whether Furukawa should be allowed to withdraw his guilty plea. Following the hearing, Judge Fitzgerald denied the motion to withdraw the plea. Judge Tashima imposed sentence of six years imprisonment and a $25,000 fine.

DISCUSSION

This court reviews the denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987). Motions to withdraw pleas should be freely given when a defendant presents a fair and just reason. Fed. R. Crim. P. 32(d); United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988). But a defendant has no right to withdraw his plea. Signori, 844 F.2d at 637. On appeal, he has the burden of showing that the court abused its discretion in denying the motion to withdraw the plea. Id. Statements of guilt made in open court carry a presumption of verity. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986).

Furukawa contends that he was denied the effective assistance of counsel because attorney Moon promised him that by pleading guilty only to count three of the indictment (1) he could receive no more than a three year sentence, (2) he would be sentenced by a lenient judge, and (3) only the amount of heroin charged in count three of the indictment could be used in sentencing. Furukawa contends also that he was rushed and pressured into pleading guilty. We disagree.

This court reviews de novo an ineffective assistance of counsel claim. Signori, 844 F.2d at 638. To perfect such an assertion, the defendant must show that (1) counsel was so deficient in his performance that the defendant was deprived of his sixth amendment rights, and (2) counsel's advice prejudiced the defendant's ability to defend himself. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). This test applies to challenges to guilty pleas based on ineffective assistance of counsel. Signori, 844 F.2d at 638. There is a strong presumption that counsel's advice was within the wide range of acceptable assistance. Iaea, 800 F.2d at 864.

Here, the written plea agreement provided that the maximum penalty for the charge to which Furukawa pled guilty was 15 years imprisonment and a $25,000 fine, and that the district court retained full discretion in fixing the sentence. At the change of plea hearing, Judge Keep and Furukawa discussed the maximum sentence. Furukawa admitted that he had time to discuss the plea with his attorney, Mr. Moon, and understood its consequences. Moreover, although Moon had previously submitted a contradictory affidavit, he later testified in open court that he believed Furukawa understood the plea agreement at the time he entered the guilty plea.

There is substantial evidence to support the court's finding that Furukawa knowingly and voluntarily pleaded guilty. We hold that the court's findings of underlying historical fact were not clearly erroneous and the court properly denied the motion to withdraw the guilty plea based on ineffective assistance of counsel. See Signori, 844 F.2d at 638.

Furukawa contends that he did not understand the proceedings because he was under the influence of medication and seriously ill at the time of his guilty plea. We reject that assertion.

This court reviews de novo the district court's determination that a plea was given voluntarily. Signori, 844 F.2d at 638. Findings of underlying historical fact are not overturned unless clearly erroneous. Id. Whether the defendant understood the consequences of his plea is an underlying factual issue. Id. To comport with the guarantees of due process, a guilty plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242 (1969).

In entering his guilty plea before Judge Keep, Furukawa said in open court that his hypertension medication was not impairing his ability to understand the proceedings and that pleading guilty was in his best interest. There was no medical evidence in support of defendant's later contrary assertion. Moon once signed an affidavit attesting to Furukawa's inability to understand the proceedings, but he testified later under oath in open court that he did not know his client well enough to say that Furukawa was detrimentally affected by his medication at the time of his guilty plea.

The district court's findings of underlying historical fact that Furukawa understood the consequences of his plea were not clearly erroneous. See Signori, 844 F.2d at 638.

Accordingly, the judgment is AFFIRMED.