United States of America, Plantiff-appellee, v. Murphy Vincent Tenerio, Defendant-appellant, 127 F.3d 1108 (9th Cir. 1997)

Tenerio appeals from the district court's final order denying his postappeal "motion to withdraw plea agreement," or, more accurately, his motion withdraw his admission to violating the terms of his supervised release. The district court denied the motion as untimely. However, the district court did not have jurisdiction over Tenerio's motion, and we have no jurisdiction over Tenerio's appeal.

We have rejected a similar motion to withdraw a plea based on Federal Rule of Criminal Procedure 32(d), which is identical to the current Federal Rule of Criminal Procedure 32(e). We explained:

The ... rule ... provides that, after sentencing, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Thus a defendant now cannot make a postsentence motion to the trial court to withdraw his guilty plea, and, hence, the district court had no jurisdiction to entertain [the defendant's] motion. We have no jurisdiction to consider the merits of [the defendant's] appeal from the denial of the motion.

United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). We follow Baker and hold that the district court was without jurisdiction and we have no jurisdiction to review the denial of Tenerio's motion to withdraw his admission to violating the terms of his supervised release. The district court order is vacated and we remand to the district court to dismiss the proceeding for lack of jurisdiction, and this appeal is dismissed.

APPEAL DISMISSED.