Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 925 F.2d 1472 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Elizabeth Schmidt WOGAMON, Defendant-Appellant.

No. 89-30354.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1990.* Decided Feb. 19, 1991.

Before WIGGINS, BRUNETTI, and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Defendant Elizabeth Wogamon (Appellant) appeals an order of the District Court of Montana, denying her motion to withdraw her plea agreement or set aside her criminal sentence.

On May 13, 1987, Appellant was charged in an indictment with participating in a conspiracy to manufacture and distribute methamphetamines, and with failure to report income alleged to be the profit of said manufacture and distribution. On June 6, 1989, Appellant entered guilty pleas to two counts of fraudulent filing of income tax returns and one count of conspiracy to defraud the Internal Revenue Service.

Appellant had previously entered a plea agreement with the United States Attorney. Appellant and the U.S. Attorney agreed that the U.S. Attorney would recommend at sentencing that Appellant be given a suspended sentence, and that such recommendation would be nonbinding on the district court.

The district court sentenced Appellant to eleven (11) years imprisonment.1  Appellant moved the court for an order setting aside the sentence or, in the alternative, allowing her to withdraw her guilty plea, under the authority of 28 U.S.C. § 2255.2  The motion was denied on September 14, 1989. Appellant filed a motion to reconsider, which was denied by a court order dated October 30, 1989. It is from this order that Appellant timely appeals.

Denial of a motion to withdraw a guilty plea is reviewed for an abuse of discretion. United States v. Hoyos, 892 F.2d 1387, 1399 (9th Cir. 1989), cert. denied, 111 S. Ct. 80 (1990). After sentencing, a guilty plea will not be set aside unless a manifest injustice will result. Hoyos, 892 F.2d at 1400.

Appellant had notice through the terms of the plea agreement that she would not have the right to withdraw the agreement once it had been entered. Appellant was further on notice through the plea agreement and the proceedings in court at the entry of plea that the court was not required to accept the U.S. Attorney's recommendations regarding imposition of a suspended sentence.

The district court did not abuse its discretion in refusing to allow Appellant to withdraw her plea agreement after sentencing.

We review de novo the district court's denial of the motion to set aside Appellant's sentence under 28 U.S.C. § 2255. United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988), cert. denied, 110 S. Ct. 51 (1989).

The grounds on which a Sec. 2255 motion may be based include: (1) imposition of a sentence in violation of the Constitution or laws of the United States; (2) absence of jurisdiction by the court to impose sentence; (3) the sentence imposed was in excess of the maximum authorized by law; or (4) the sentence was otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962); United States v. Clark, 781 F.2d 730, 731-32 (9th Cir. 1986). Appellant argues that her Constitutional rights have been violated, as the due process clause requires that there be some factual basis for the departure from the U.S. Attorney's recommended sentence.

However, a sentence which is within statutory limits is not ordinarily reviewable on appeal. United States v. Tucker, 404 U.S. 443, 446-47 (1972); United States v. Meyers, 847 F.2d 1408, 1416 (9th Cir. 1988). The sentence imposed by the district court in this case was not in excess of the statutory maximum. The district court's discretion in sentencing is in no way limited by the recommendation of the U.S. Attorney.

Appellant was provided with notice and an opportunity to be heard at the entry of plea and at sentencing. The district court's consideration of the presentence report, to which the Appellant did not object, does not violate Appellant's due process rights.

Appellant has not shown that there was a manifest injustice in the district court's denial of the motion to set aside the sentence.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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 Circuit Rule 36-3

 1

Appellant was sentenced to the maximum penalty on each count, with all three sentences to run consecutively

 2

Appellant also sought relief under Fed. R. Crim. P. 32(d). However, that rule only applies to the withdrawal of a plea agreement before sentencing. After imposition of a sentence, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255."