United States of America, Plaintiff-appellee, v. Michael Patrick Greiner, Defendant-appellant, 972 F.2d 1345 (9th Cir. 1992)

MEMORANDUM^** 

Michael Patrick Greiner appeals the denial of his motion to withdraw a guilty plea to conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 841(a) (1). Greiner contends that the district court abused its discretion by failing to find his guilty plea invalid due to ineffective assistance of counsel. Greiner also argues that his state of depression constituted a fair and just reason for withdrawal of his guilty plea under Fed. R. Crim. P. 32(d). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir. 1991). While effectiveness of counsel and voluntariness of a guilty plea are reviewed de novo, factual findings underlying a district court's determination of voluntariness are upheld absent clear error. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988).

A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing of any fair and just reason. Fed. R. Crim. P. 32(d). Generally, such withdrawals are to be freely allowed, but are not a matter of right. Signori, 844 F.2d at 637. A defendant may not withdraw a guilty plea after his co-defendants have been sentenced unless it will result in manifest injustice. Ramos, 923 F.2d at 1358-59.¹ 

A defendant who pleads guilty on advice of counsel may attack the voluntariness of his plea only by showing ineffective assistance of counsel. Signori, 844 F.2d at 638. A defendant is entitled to withdraw his guilty plea for ineffective assistance if his attorney made gross misrepresentations about existing law, United States v. Zweber, 913 F.2d 705, 712 (9th Cir. 1990); Signori, 844 F.2d at 638, but not if the defendant fails to establish that misrepresentations were in fact made, Signori, 844 F.2d at 638-39. An attorney's erroneous sentence prediction does not invalidate a guilty plea where the district court has fully apprised the defendant that it was free to impose the maximum penalty. United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990). Absent proof of ineffective assistance of counsel, a defendant's apprehension that his sentence will be harsher than originally expected does not justify withdrawal of a guilty plea. Shah v. United States, 878 F.2d 1156, 1161-62 (9th Cir.), cert. denied, 493 U.S. 869 (1989).

Here, Greiner contends that he was entitled to withdraw his guilty plea because ineffective assistance of counsel rendered the plea involuntary. Greiner and his sister stated in affidavits that his previous attorney, Patrick Briggs, misinformed Greiner that he would be eligible for a six month to one year sentence at a minimum security work camp and that, if he did not prevail at trial, he would be subject to vindictive prosecution on other charges related to the conspiracy.² 

Nonetheless, at the hearing on the motion to withdraw the guilty plea, Briggs denied having so advised Greiner and testified extensively as to the details of his discussions with his client.³  There is no clear error in the district court's factual determination that Briggs did not make any misrepresentations to Greiner about the consequences of his guilty plea.⁴  See Signori, 844 F.2d at 637-38. Moreover, Greiner did not move to withdraw his guilty plea until the actual date of sentencing, three months after the guilty plea, after his co-defendants had been sentenced, and after he had become aware of the sentence recommendation in his probation report. In light of these factors, the district court did not abuse its discretion in concluding that Greiner was experiencing a case of "buyer's remorse." See Ramos, 923 F.2d at 1358-59; Shah, 878 F.2d at 1161-62. No manifest injustice resulted from the the district court's denial of Greiner's motion to withdraw his guilty plea due to ineffective assistance of counsel. See Ramos, 923 F.2d at 1358-59.

Greiner contends for the first time on appeal that his depression over the suicide of his fiancée constitutes a fair and just reason for withdrawal of his guilty plea. With some exceptions, issues not presented to the district court cannot be raised for the first time on appeal. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991); United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.), cert. denied, 484 U.S. 832 (1987). Greiner offers no argument that his case fits within the exceptions to this rule.⁵ 

AFFIRMED.