United States v. George Hernandez, Jr. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30213
Plaintiff-Appellee, D.C. No. 3:16-cr-05358
v.
MEMORANDUM*
George Edward Hernandez, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted March 8, 2019
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and JACK,** District Judge.
George Hernandez, Jr. (“Hernandez”), plead guilty to one count of
possession of a controlled substance with intent to distribute, methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and one count of possession
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
of a firearm during and in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). On appeal, he challenges the district court’s decision
denying his motion to withdraw guilty plea and asserts that the appellate waiver in
his guilty plea does not bar this appeal. We have jurisdiction over this appeal
pursuant to 28 U.S.C. § 1291.
1. Whether a defendant waived his right to appeal is reviewed de novo.
United States v. Rivera, 682 F.3d 1223, 1227 (9th Cir. 2012). When a court
informs a defendant of a right to appeal, “the court’s oral pronouncement defeats a
written appeal waiver.” United States v. Aguilar-Muniz, 156 F.3d 974, 977 (9th
Cir. 1998). Here, the magistrate judge ambiguously preserved Hernandez’s right
to appeal.
2. A denial of a motion to withdraw guilty plea by a district court is
reviewed for abuse of discretion. United States v. Ruiz, 257 F.3d 1030, 1033 (9th
Cir. 2001) (en banc). In order to withdraw a guilty plea, a defendant must present
the district court with “a fair and just reason for requesting the withdrawal.” Fed.
R. Crim. P. 11(d)(2)(B). Information that was already known to the defendant or
which the defendant had access to cannot be used as the basis of a motion to
withdraw guilty plea. See United States v. Fitzhugh, 78 F.3d 1326, 1329 (8th Cir.
1996). Further, a defendant cannot base his or her motion on receiving inadequate
legal counsel when counsel discussed the specific issues upon which defendant
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now bases his or her motion to withdraw guilty plea. United States v. Mayweather,
634 F.3d 498, 506 (9th Cir. 2010). Given that Hernandez based his motion on the
possibility of new evidence gleaned from legal strategies already discussed by
previous counsel prior to his plea agreement, the district court did not abuse its
discretion in denying the motion.
AFFIRMED.
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