Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Jesus Guadalupe Millan-Esquer appeals his conviction and sentence following entry of his guilty plea to possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Millan-Esquer contends that the district court erred by refusing to grant his motion to withdraw his guilty plea. In the alternative, Millan-Esquer contends that the district court erred by refusing to grant him a minor or minimal participant downward adjustment under the United States Sentencing Guidelines (Guidelines). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

* Motion to Withdraw Guilty Plea

Millan-Esquer contends that he did not rationally comprehend what he was doing when he entered his guilty plea and protests his innocence of the offense of conviction. Millan-Esquer does not allege that his change of plea hearing did not meet the requirements of Fed. R. Crim. P. 11, nor does he allege any other reason for withdrawing his plea that did not exist at the time of the change of plea hearing.¹ 

We review a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990); United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987).

A district court may permit withdrawal of a guilty plea before sentencing for any fair and just reason. Fed. R. Crim. P. 32(d). A defendant has no right to withdraw his guilty plea, United States v. Castello, 724 F.2d 813, 814 (9th Cir.), cert. denied, 467 U.S. 1254 (1984); rather, the decision to allow withdrawal is within the sound discretion of the district court. United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986). A defendant bears the burden of showing a fair and just reason for withdrawal. Castello, 724 F.2d at 814.

Because " [s]olemn declarations in open court carry a strong presumption of verity" when the defendant enters a guilty plea, United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.) (citation omitted), cert. denied, 484 U.S. 382 (1987), a district court is entitled to credit sworn testimony offered at a Fed. R. Crim. P. 11 hearing over subsequent, conflicting statements, Castello, 724 F.2d at 815. The district court may also consider the timing and circumstances of the motion to withdraw, United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir. 1980), and a defendant's later change of heart is not sufficient cause to withdraw the plea, Rios-Ortiz, 830 F.2d at 1070.

Here, Millan-Esquer testified under oath at the change of plea hearing that: (1) he understood the possible consequences of his plea; (2) he was in full possession of his mental faculties; (3) no one threatened him to get him to change his plea to guilty; and (4) he committed the crime to which he was pleading guilty. After asking if Millan-Esquer wanted to enter a plea of guilty and receiving a positive answer, the district court gave Millan-Esquer the opportunity to change his mind: Millan-Esquer declined to do so.² 

Although the allegations Millan-Esquer made in his motion to withdraw the plea contradict this testimony, his statements under oath at the hearing carry significant weight. See Rubalcaba, 811 F.2d at 494; Castello, 724 F.2d at 815. Indeed, it appears that Millan-Esquer made his motion to withdraw the plea after the issuance of the presentence report (PSR) recommending 188 months of incarceration.³  The district court could reasonably have concluded that Millan-Esquer experienced a change of heart after receiving the PSR sentencing recommendation. This change of heart does not justify withdrawal of the plea. See Navarro-Flores, 628 F.2d at 1184. The district court was entitled to credit Millan-Esquer's sworn statements over his subsequent conflicting claims. Castello, 724 F.2d at 815. Therefore, the district court did not abuse its discretion by denying Millan-Esquer's motion to withdraw his plea. See Rios-Ortiz, 830 F.2d at 1069; Rubalcaba, 811 F.2d at 494; Castello, 724 F.2d at 815; Navarro-Flores, 628 F.2d at 1184.

II

Minor or Minimal Participant Status

We decline to reach the merits of Millan-Esquer's claim that the district court erred by not adjusting his base offense level because he failed to raise this objection below. "It is well settled that ' [a] party must raise an objection initially to the trial court to preserve it for appeal.' " United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990) (citation omitted).

We have held that we may consider an issue raised for the first time on appeal if

(1) there are "exceptional circumstances" why the issue was not raised in the trial court,

(2) the new issue arises while the appeal is pending because of a change in the law, or

(3) the issue presented is purely one of law...."

Id., at 1302 (quoting United States v. Carlson, 900 F.2d 1346, 1349-1350 (9th Cir. 1990)). None of these factors is present here.

The "determination of whether a defendant was a minor or minimal participant in a crime is necessarily a fact-dependent inquiry." Smith, 905 F.2d at 1302. Therefore, we decline to reach the merits of Millan-Esquer's argument on this issue.

AFFIRMED.