Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 888 F.2d 130 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Hawthorne HARRINA, Sr., Defendant-Appellant.

No. 88-1452.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.* Decided Oct. 11, 1989.

Before BROWNING, KOZINSKI, and RYMER, Circuit Judges.


MEMORANDUM** 

Appellant Harrina pleaded guilty to one count of attempted sexual abuse in violation of 18 U.S.C. § 2242 after the government agreed to recommend a 5-year term of imprisonment. The district court then sentenced Harrina to an 8-year term of imprisonment. At a re-sentencing hearing two days after sentencing, Harina moved, under Fed. R. Crim. P. Rule 32(d), to withdraw his plea alleging his plea was not knowing and voluntary.

At the hearing on the motion to withdraw the plea, Harrina's witnesses testified that: (1) Harrina spoke mostly in his native language, Apache; (2) he has a verbal I.Q. of 63 and a performance I.Q. of 55; (3) he could not comprehend certain routine English words such as "fabric," "assemble," "concealed" and "enormous"; (4) he needed help in accomplishing routine transactions, such as buying a truck; (5) he reached only the fourth or sixth grade in school; (6) he is a functional illiterate; (7) he would not understand approximately 30 percent of the words contained in the plea agreement; and (8) according to his probation officer, even after entering the plea, Harrina did not understand the nature of the charge, thinking that he was charged with rape and that he faced a possible life sentence.

The government offered evidence that: (1) Harrina responded affirmatively at his plea allocution when the court asked him whether he understood the nature of the charge and the plea agreement and whether he knew that he faced a possible 20-year sentence; (2) he worked as a lumber grader for 17 years; (3) he communicated with certain people only in English; (4) he had a religious radio program for ten years in which he read Bible passages in English and interpreted them for the audience in Apache; and (5) he spent four years in the U.S. Marine Corps where his orders were rendered to him in English.

Voluntariness of a plea is a question of law and we review it de novo. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986). "However, we will uphold findings of historical or subsidiary facts underlying the court's conclusion of voluntariness unless clearly erroneous." Signori, 844 F.2d at 638.

The district court concluded after a hearing that, "notwithstanding the defendant's linguistic and intellectual limitations, his plea of guilty ... was competent, knowing and voluntary in all respects." Thus, the district court found Appellant's linguistic and intellectual limitations did not impair his understanding of the plea agreement. We are mindful that the district court "saw, heard, and evaluated the testimony." United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). Inasmuch as the evidence proffered at the Rule 32(d) hearing was sufficient to support the district court's finding that Harrina understood the terms of the plea agreement, this finding must be accepted by us in reviewing the ultimate determination of voluntariness. Given that Harrina understood the terms of his plea, we hold that the plea itself was knowing and voluntary.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

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