Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1988)

MEMORANDUM^** 

Alfred A. Smith, aka James Farrell, appeals the district court's denial of his motion for a new trial based on allegedly newly discovered evidence. Smith contends that the district court erroneously imposed a harsher sentence after his second guilty plea than the sentence proposed by the court before Smith withdrew his first guilty plea. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Appellant was sentenced on July 6, 1987 and did not file his Motion for New Trial until June 10, 1988. He alleged that the district court erred because it imposed an eight-year sentence on appellant after he pleaded guilty, following one day of trial, to one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of making false statements in violation of 26 U.S.C. § 7206(1). Appellant contended that the imposition of this sentence violated his constitutional rights because it exceeded the sentence proposed by the district court in response to appellant's earlier guilty plea to only two counts of making false statements. Appellant also alleged that he was coerced into entering a guilty plea, and that the plea had no factual or legal basis in the record as required by Fed. R. Crim. P. 11.

Although appellant characterized his challenge as a request for new trial under Rule 33, the substance of his motion was a challenge to the legality of his sentence under Fed. R. Crim. P. 35.¹ 

At the time appellant was sentenced, Fed. R. Crim. P. 35(a) allowed a defendant to challenge the legality of his sentence at any time. The rule was amended effective November 1, 1987 and a defendant may no longer challenge the legality of his sentence except by way of habeas corpus. See Fed. R. Crim. P. 35(a); 28 U.S.C. § 2255. Nonetheless, " [t]he prior version of Rule 35 ... still governs for crimes committed before November [1, 1987]." United States v. Minor, 846 F.2d 1184, 1188 n. 4 (9th Cir. 1988). Because this court construes pro se pleadings liberally, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc), we address the legality of appellant's sentence rather than his request for a new trial.² 

We review de novo whether a harsher sentence was imposed as punishment for a defendant's assertion of his right to trial. United States v. Morris, 827 F.2d 1348, 1352 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988).

Appellant withdrew his first guilty plea after the district judge indicated his intention to impose a sentence of at least three years imprisonment, rather than the eighteen months stipulated in the plea bargain. After one day of trial, appellant entered a second guilty plea. Appellant now contends that his due process rights were violated because the sentence imposed after the second plea exceeded that proposed by the court in response to the first plea. He claims that because both sentences rested on the same illegal conduct, the district court's decision to impose a greater sentence penalized him for exercising his constitutional right to trial.³ 

"When a defendant voluntarily chooses to reject or withdraw from a plea bargain, he retains no right to the rejected sentence." United States v. Carter, 804 F.2d 508, 513 (9th Cir. 1986). The imposition of a heavier sentence after a defendant rejects a plea bargain does not by itself invalidate the sentence. Morris, 827 F.2d at 1352. Although an accused may not be subjected to more severe punishment merely for exercising his right to trial, the judge may have legitimate reasons for sentencing a defendant more severely after more facts concerning the crime have been revealed. Carter, 804 F.2d at 513-14. This court may give weight to an "unequivocal statement by the judge [that the defendant's] decision to go to trial ... was not considered in imposing sentence." Id. at 514.

Here, appellant pleaded guilty to more serious charges than those underlying his first guilty plea. The district judge explicitly stated that "it would be wrong for the court to penalize [Smith] for exercising [his] right to a jury trial on these charges.... that's an absolute right and no court should ever punish [him] for the exercise of that right." The judge went on to note, however, that " [W]e have discovered the expansive nature of the offenses, the seriousness of this, your background, your prior record..... [A]ll of those things then come into play. So at this point sentence ... will be imposed that the court feels is appropriate to the offenses committed by you."

On this record, we find no indication that the sentence was imposed vindictively or punitively. Therefore, the district court did not err by denying appellant's motion.⁴  See Carter, 804 F.2d at 514.

AFFIRMED.