United States of America, Plaintiff-appellee, v. Antonio Barocio, Jr., Defendant-appellant, 8 F.3d 30 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 8 F.3d 30 (9th Cir. 1993) Argued and Submitted Aug. 10, 1993. Decided Sept. 30, 1993

Before: REINHARDT and LEAVY, Circuit Judges, and MERHIGE* , District Judge.


Antonio Barocio, Jr. appeals the district court's denial of his motion to withdraw his guilty plea. Pursuant to a written plea agreement with the government, Barocio pleaded guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Barocio then changed counsel and filed a motion to withdraw his guilty plea. The basis of the motion was Barocio's contention that at the time of his plea he did not know that as a repeat drug offender he was subject to a mandatory term of twenty-years of imprisonment. Rule 32(d) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw his plea prior to sentence for "any fair and just reason." The district court denied Barocio's motion without elaboration. We review a district court's decision to deny a motion to withdraw a guilty plea for abuse of discretion. United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir. 1991).

In support of his motion, Barocio's submitted an affidavit stating that he had seen his former attorney "very seldom" and that they had conferred for less than ten minutes before he entered his guilty plea. He claimed that he had not understood that he faced a 20-year minimum sentence and he would not have pleaded guilty had he known the mandatory penalty he faced. However, the district court reviewed the mandatory minimum penalty with Barocio at his change of plea hearing. Moreover, the 20-year minimum sentence was contained in Barocio's written plea agreement. Based upon the factual record before us, we cannot say that the district court abused its discretion in denying Barocio's motion to withdraw his plea.



Honorable Robert R. Merhige, Senior United States District Judge, Eastern District of Virginia, sitting by designation


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