Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Alfred A. SMITH, a/k/a James Farrell, Defendant-Appellant.

No. 88-1342.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided April 3, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


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.



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


To obtain a new trial based on newly discovered evidence under Fed. R. Crim. P. 33, a defendant must allege evidence discovered after trial which would be likely to produce an acquittal if introduced in a new trial. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985); United States v. Krasny, 607 F.2d 840, 842-43 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980). Here, the facts underlying appellant's allegations were known at the time of the trial and do not constitute "new evidence" within the meaning of Rule 33. See, e.g., United States v. Endicott, 869 F.2d 452, 456-57 (9th Cir. 1989); Steel, 749 F.2d at 713; Krasny, 607 F.2d at 842. Thus, this ground for a new trial is unavailable


Appellant asks this court to treat his pro se Motion for New Trial under Rule 33 as a Notice of Appeal from his sentence. An appeal of a sentence must be filed within ten days of the entry of judgment, and this period cannot be extended for excusable neglect by more than 30 days. Fed. R. App. P. 4(b). Here, appellant did not file his motion until nearly a year after the entry of judgment. Thus, even if we were inclined to treat the Rule 33 motion as a notice of appeal to the original sentence, we would not have jurisdiction because the notice could not be considered timely filed. See United States v. Buzard, 884 F.2d 475, 475-76 (9th Cir. 1989), petition for cert. filed, No. 89-6546 (Jan. 29, 1990)


Appellant also claimed below that his guilty plea was coerced and was not supported in fact and in law by the record as required by Fed. R. Crim. P. 11. Nonetheless, as he did not raise these claims on appeal, they are deemed abandoned. See Meehan v. County of Los Angeles, 856 F.2d 102, 105 n. 1 (9th Cir. 1988); Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988)


Although the district court based its denial on appellant's failure to allege new evidence in support of his motion for new trial, this court may affirm on the district court on any basis fairly supported by the record. See United States v. Burnette, 698 F.2d 1038, 1048 (9th Cir.), cert. denied, 461 U.S. 936 (1983)