United States v. Davis ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50030
Plaintiff-Appellee, D.C. No.
v.
 CR-00-1132-MMM
CLIFFORD A. DAVIS, M.D., ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
March 7, 2005—Pasadena, California
Filed June 9, 2005
Amended November 2, 2005
Before: Susan P. Graber and Consuelo M. Callahan,
Circuit Judges, and Charles R. Breyer,* District Judge.
Opinion by District Judge Breyer;
Partial Dissent by Judge Callahan
*Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
15001
15004 UNITED STATES v. DAVIS
COUNSEL
Randy S. Kravis, Studio City, California, for the defendant-
appellant.
Ronald L. Cheng, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
ORDER
The opinion filed on June 9, 2005, slip op. 6753, and
appearing at 410 F.3d 1122 (9th Cir. 2005), is replaced by the
amended opinion and dissent filed concurrently with this
order.
Petitions for rehearing or for rehearing en banc may be
filed.
OPINION
BREYER, District Judge:
We must decide whether a district court has discretion to
permit a defendant to withdraw his guilty plea prior to sen-
tencing when the district court finds that defense counsel
UNITED STATES v. DAVIS 15005
“grossly mischaracterized” the defendant’s possible sentence,
but also finds that the mischaracterization did not actually
prejudice the defendant as is required to invalidate a plea
post-sentence. We answer “yes.” Because the district court
did not believe it had such discretion, we vacate and remand
for reconsideration of defendant’s motion to withdraw his
plea.
FACTUAL AND PROCEDURAL BACKGROUND
A grand jury indicted defendant, a physician, for conspir-
acy to distribute Dilaudid, a Schedule II controlled substance,
and for twelve separate distribution counts. After several con-
tinuances, trial was scheduled for October 23, 2001. Just
before trial, defendant, then aged 72, pleaded guilty pursuant
to a plea agreement to a second superseding information
charging defendant with two counts of violating 21 U.S.C.
§ 843(b), using a telephone to facilitate a conspiracy to dis-
tribute illegal narcotics by means of false and fraudulent drug
prescriptions. The plea agreement unambiguously stated that
defendant’s potential maximum sentence was eight years.
During the extensive Rule 11 plea colloquy, the government,
at the district court’s request, again stated that the defendant
faced a maximum sentence of eight years, and further empha-
sized that the government might seek an offense level which
would place defendant’s guideline range well in excess of the
eight-year statutory maximum.
In February 2002, the United States Probation Office issued
a Presentence Report (“PSR”) in which it recommended that
the court sentence defendant to the statutory maximum of
eight years’ imprisonment. Although defendant had stipulated
to illegally issuing only 16 prescriptions for Dilaudid, the
PSR calculated defendant’s offense level based on defendant
having illegally issued additional prescriptions. Defendant
subsequently filed a motion for new counsel (defendant’s
retained counsel had become appointed counsel around the
time of defendant’s plea).
15006 UNITED STATES v. DAVIS
The district court held a hearing on defendant’s request.
During the in camera portion of the hearing, defendant
explained that he wanted new counsel because, among other
reasons, he wanted to withdraw his plea, but his attorney was
not supportive of the idea. Defendant’s counsel stated on the
record that defendant’s decision to plead guilty was very diffi-
cult, and that defendant was uncertain as to what to do up to
the very last minute. After additional inquiry, the district court
determined that defendant could continue to communicate
with his counsel and therefore denied the request for substi-
tute counsel.
Defendant nonetheless came up with the funds to hire new
counsel, and before he was sentenced, filed a motion to with-
draw his guilty plea. Defendant argued that his former counsel
had pressured him into entering the plea, and that his counsel
had rendered ineffective assistance by advising defendant that
he would receive probation if he pleaded guilty.
The district court held an evidentiary hearing on defen-
dant’s motion. Defendant and defendant’s son testified in sup-
port of the motion to withdraw. Defendant’s son testified that
the weekend before defendant pleaded guilty, defendant told
him that he might have to plead guilty in order to avoid jail
time. The government called defendant’s former attorney as
a witness. The former attorney denied having promised that
defendant would receive probation if he pleaded guilty, but he
admitted that he advised defendant that his potential sentenc-
ing range was probation to eight years.
The district court subsequently issued a 27-page written
order denying defendant’s motion to withdraw his plea. After
acknowledging that the court could permit defendant to with-
draw his plea if he shows a “fair and just reason” for doing
so, the district court applied the two-part test for invalidating
a guilty plea based on ineffective assistance of counsel. See
Hill v. Lockhart, 474 U.S. 52, 59 (1985). The court rejected
defendant’s assertion that his former attorney had absolutely
UNITED STATES v. DAVIS 15007
promised that he would receive probation, but nonetheless
found that counsel had rendered constitutionally deficient per-
formance when advising defendant on the entry of the guilty
plea:
Because there was little, if any, likelihood that
defendant might receive a probationary sentence in
this case, and because mention of such a possibility
significantly skewed the sentencing range [counsel]
presented, . . . [counsel] grossly mischaracterized the
likely outcome of the case and rendered deficient
performance in advising defendant regarding the
entry of a guilty plea.
The court next concluded, however, that defendant had not
demonstrated actual prejudice; that is, he had not proved that
but for his counsel’s deficient performance he would not have
pleaded guilty. The court based this conclusion on the Rule 11
plea colloquy and, in particular, on the fact that defendant was
told, and stated that he understood, that he could be sentenced
to eight years in prison. For this reason the district court
denied defendant’s motion to withdraw his plea.
At the subsequent sentencing hearing, the court adopted the
PSR’s findings. The court also found that defendant was
likely to die within the next five years because of a heart con-
dition, but declined to depart downward; instead, the court
sentenced defendant to the statutory maximum of eight years.
Defendant appeals the district court’s denial of his motion
to withdraw his plea. He also argues that in the light of the
United States Supreme Court’s decision in United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), his case should
be remanded to the district court for resentencing.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a district court’s denial of
a Rule 11 motion to withdraw a guilty plea pursuant to 28
15008 UNITED STATES v. DAVIS
U.S.C. § 1291. United States v. Nostratis, 321 F.3d 1206,
1207 (9th Cir. 2003). We review for an abuse of discretion the
district court’s denial of such a motion. United States v.
Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). “A dis-
trict court abuses its discretion when it rests its decision on an
inaccurate view of the law.” United States v. Garcia, 401 F.3d
1008, 1011 (9th Cir. 2005).
DISCUSSION
A. The Motion To Withdraw The Plea
[1] A district court may permit a defendant to withdraw a
guilty plea before sentencing if “the defendant can show a fair
and just reason for requesting the withdrawal.” Fed.R.Crim.P.
11(d)(2)(B).1 After a defendant is sentenced, however, a “plea
may be set aside only on direct appeal or collateral attack.”
Fed. R.Crim.P. 11(e).
[2] The defendant has the burden of demonstrating a fair
and just reason for withdrawal of a plea, see Rule 11(d)(2)(B);
however, the standard is applied liberally. See Garcia, 401
F.3d at 1011; Ortega-Ascanio, 376 F.3d at 883; United States
v. Nagra, 147 F.3d 875, 880 (9th Cir. 1998); see also United
States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988) (stating
that a motion to withdraw a plea pre-sentence should be
“freely allowed”). “Fair and just reasons for withdrawal
include inadequate Rule 11 plea colloquies, newly discovered
evidence, intervening circumstances, or any other reason for
withdrawing the plea that did not exist when the defendant
1
This Rule was found in Federal Rules of Criminal Procedure 32(e) at
the time the district court decided defendant’s motion to withdraw his
plea. After the December 2002 amendments to the Rules, the withdrawal
Rule was moved to Rule 11(d)(2)(B). “Despite minor language changes in
the rule, the ‘fair and just reason’ standard remains the same . . . .” Nostra-
tis, 321 F.3d at 1208 n.1. This Opinion refers to the Rule in its current
form.
UNITED STATES v. DAVIS 15009
entered his plea.” Ortega-Ascanio, 376 F.3d at 883 (emphasis
added).
Here, defendant proffered a reason for withdrawal that he
claimed did not exist at the time of his plea; namely, his belief
(based on his attorney’s advice) that if he pleaded guilty he
would receive probation. Arguably, he first learned that there
was virtually no chance that he would receive probation when
he received the PSR. The district court found that counsel had
not absolutely promised that defendant would receive proba-
tion, but it also found that counsel had “grossly mischaracter-
ized” defendant’s possible sentence and had rendered
deficient performance by advising defendant that his likely
sentence was probation to eight years. See Chacon v. Wood,
36 F.3d 1459, 1464 (9th Cir. 1994) (noting that a defendant
can prove that his counsel engaged in constitutionally defi-
cient performance by showing that counsel grossly mischarac-
terized the likely outcome) (citing Iaea v. Sunn, 800 F.2d 861,
865 (9th Cir. 1986))), superseded by statute on other grounds
as stated in Morris v. Woodford, 229 F.3d 775, 779 (9th Cir.
2000). Under the Sentencing Guidelines there was little, if
any, possibility that defendant would be sentenced to proba-
tion or anything close to probation.2 Again, defendant argu-
ably did not learn of his attorney’s gross mischaracterization
until he received the PSR.
The district court nonetheless denied defendant’s motion
because defendant did not prove actual prejudice as required
by Hill, 474 U.S. at 58-59. In Hill, the United States Supreme
Court held that a defendant may successfully attack the valid-
ity of a guilty plea based on ineffective assistance of counsel
if the defendant shows “that there is a reasonable probability
2
The district court found that, in order for defendant to receive a sen-
tence at the low end of the range suggested by counsel, the court would
have had to depart 20 to 30 levels. The court further found that there was
little likelihood that the limited grounds for departure reserved by defen-
dant in the plea agreement would warrant such an extreme departure.
15010 UNITED STATES v. DAVIS
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Id. at 59.
The court concluded that defendant had not met that burden
because, during the Rule 11 colloquy, the court properly
advised defendant that he could be sentenced to a maximum
of eight years’ imprisonment, precisely the sentence he
received. Defendant’s acknowledgment of this fact during the
colloquy was, the district court concluded, inconsistent with
his assertion that he believed he would receive probation.
[3] Although the district court may have correctly deter-
mined that defendant had not established actual prejudice suf-
ficient to invalidate his plea, a defendant does not have to
prove that his plea is invalid in order to establish a fair and
just reason for withdrawal before sentencing. The invalidity
standard applies only after a defendant has been sentenced.
See Fed.R.Crim.P. 11(e); Garcia, 401 F.3d at 1012; Ortega-
Ascanio, 376 F.3d at 884. Prior to sentencing, the proper
inquiry is whether the defendant has shown a fair and just rea-
son for withdrawing his plea even if the plea is otherwise
valid. See Garcia, 401 F.3d at 1012; Ortega-Ascanio, 376
F.3d at 884.
In Ortega-Ascanio, for example, the defendant moved to
withdraw his plea prior to sentencing so that he could move
to dismiss the indictment based on a Supreme Court decision
issued after his plea. The district court ruled that the defen-
dant had not shown a fair and just reason for withdrawing his
plea because “ ‘a pre-plea constitutional violation . . . by itself
is insufficient to invalidate the properly entered guilty plea.’ ”
Id. at 883. We reversed, holding that the district court had
applied the wrong legal standard to the defendant’s motion:
“namely, demonstration that the plea was invalid.” Id. at 884.
[4] The district court applied the same incorrect legal stan-
dard here: requiring defendant to prove that his plea is invalid.
The court held that defense counsel’s constitutionally defi-
cient performance could constitute a fair and just reason for
UNITED STATES v. DAVIS 15011
withdrawing the plea only if defendant satisfied the prejudice
prong of Hill; that is, only if he proved that, but for his coun-
sel’s erroneous advice, he would have insisted on going to
trial. See Hill, 474 U.S. at 59. The Hill standard, however,
applies when a defendant seeks to invalidate a plea post-
sentence. To require a defendant to satisfy the prejudice prong
of Hill in order to withdraw a plea based on counsel’s errone-
ous advice eviscerates the distinction between a motion to
withdraw a plea made pre-sentence and a post-sentence chal-
lenge to a plea.
Such an interpretation of ‘fair and just’ renders the
rule nothing more than an expedited hearing on a
challenge to the voluntariness of a plea. A fair read-
ing of the broad language of Rule 11(d)(2)(B) . . .
establishes that a defendant need not prove that his
plea is invalid in order to meet his burden of estab-
lishing a fair and just reason for withdrawal.
Ortega-Ascanio, 376 F.3d at 884; see also Garcia, 401 F.3d
at 1012 (holding that the “ ‘fair and just reason’ standard is
simply more generous than the standard for determining
whether a plea is invalid”).
The dissent relies heavily on United States v. Signori, 844
F.2d 635, 638 (9th Cir. 1988), and United States v. Rubal-
caba, 811 F.2d 491, 494 (9th Cir. 1987), for the proposition
that post-sentence standards for withdrawing a guilty plea
apply in the pre-sentence context. Those cases are clearly dis-
tinguishable.
In Signori, the defendant alleged that he had received inef-
fective assistance of counsel because his lawyer led him to
believe that he could withdraw his guilty plea at any time. 844
F.2d at 638. But the defendant tried to demonstrate counsel’s
alleged negligence only by an unsworn contention made at the
time he moved to withdraw his plea. Id. at 639. We explained
that the cases cited by the defendant, which held that a guilty
15012 UNITED STATES v. DAVIS
plea cannot be induced by a misrepresentation, “all involved
proven misrepresentations.” Id. at 638. By contrast, the dis-
trict court in Signori found, as a fact, contrary to the defen-
dant’s unsworn allegation, that the defendant had been fully
advised by his counsel of the consequences of pleading guilty.
Id. at 639. Here, the district court found as a fact precisely the
opposite — that counsel affirmatively misrepresented to
defendant his likely sentencing range. As the court in Signori
pointed out, id. at 638, cases involving proven misrepresenta-
tions present very different circumstances, which alter our
analysis of whether a defendant has established a fair and just
reason for withdrawing a guilty plea. And it is not surprising
that opposite factual findings may lead to opposite results.
In Rubalcaba, the defendant wanted to withdraw his guilty
plea because he claimed that his counsel had failed to explain
his plea agreement adequately and thereby rendered ineffec-
tive assistance. 811 F.2d at 494. In particular, the defendant
asserted that he did not know that his sentences could possibly
run consecutively. Id. However, the district court’s recitation
of the defendant’s possible sentence at his plea hearing, speci-
fying the possibility of consecutive sentences, countered
exactly the alleged misinformation. Id. Here, by contrast,
defendant does not claim that he failed to appreciate the theo-
retical contours of his plea agreement, but only that his lawyer
lured him into pleading guilty by making a grossly wrong pre-
diction of the sentencing range. In that context, the court’s
recitation of the maximum possible sentence confirms, but in
no way contradicts, the lawyer’s wrong prediction. Again, the
fact that defendant’s counsel affirmatively misrepresented the
possible sentence that defendant might receive distinguishes
Rubalcaba and requires us to engage in a more nuanced fair-
and-just analysis.
[5] Because a defendant does not have to prove that his
plea was invalid in order to justify withdrawal, a defense
counsel’s erroneous advice may warrant withdrawing a plea
even if the defendant does not prove that he would not have
UNITED STATES v. DAVIS 15013
pleaded guilty but for the erroneous advice. Our recent deci-
sion in Garcia is illustrative. There the defendant moved to
withdraw his plea based on newly-discovered evidence. We
held that,
[w]hile newly discovered evidence wholly unrelated
to a defendant’s case would surely not entitle him to
withdraw his guilty plea, the generous “fair and just
reason” standard does not require that the defendant
show that the new evidence exonerates him or that
there is a reasonable probability he would not have
been convicted had the case gone to trial.
401 F.3d at 1011. We also did not require Garcia to prove that
he would not have pleaded guilty had he been aware of the
newly discovered evidence:
Had Garcia known about this evidence earlier, he
may well have changed his mind about whether to
plead guilty. We need not hypothesize about the rip-
ple effect of the new evidence or speculate about its
potential effect on a jury. It is sufficient that this evi-
dence was relevant evidence in Garcia’s favor that
could have a least plausibly motivated a reasonable
person in Garcia’s position not to have pled guilty
had he known about the evidence prior to pleading.
Id. at 1011-12 (emphasis added). Thus, a defendant may dem-
onstrate a fair and just reason for plea withdrawal by showing
that his counsel’s gross mischaracterization plausibly could
have motivated his decision to plead guilty. Nothing in Rule
11(d)(2)(B) requires a defendant to show more in order to sat-
isfy the “fair and just reason” standard.
[6] We have little difficulty concluding that, under this
standard, the district court in its discretion could have permit-
ted defendant to withdraw his plea. Defense counsel’s testi-
mony that defendant was uncertain as to whether to plead
15014 UNITED STATES v. DAVIS
guilty until the very last moment, defendant’s son’s testimony
that defendant stated that he was pleading guilty to avoid jail,
and defendant’s advanced age and poor health, all support a
finding that defense counsel’s gross mischaracterization of the
likely sentencing range could have motivated defendant to
plead guilty. The district court, however, incorrectly believed
that it did not have discretion to permit defendant to withdraw
his plea unless defendant proved actual prejudice. The district
court’s unduly narrow view of its discretion requires us to
vacate the denial of defendant’s motion to withdraw his plea.
See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir. 2001)
(en banc) (holding that a district court’s application of the
wrong legal standard on a motion to withdraw a plea consti-
tutes an abuse of discretion).
[7] In Ortega-Ascanio and Garcia, we determined that
under the correct legal standard it would have been an abuse
of discretion not to grant the defendant’s motion to withdraw.
We do not make that determination here; instead, we remand
to the district court to decide anew defendant’s motion to
withdraw his plea based on the correct legal standard. See
Ruiz, 257 F.3d at 1033.
B. The Booker Claim
[8] While defendant’s appeal was pending, the United
States Supreme Court decided Booker. The Court held that the
Sentencing Guidelines are advisory and that the appellate
courts should review sentences for “unreasonableness.” 125
S. Ct. at 764-65. “Because we cannot say that the district
judge would have imposed the same sentence in the absence
of mandatory Guidelines and de novo review of downward
departures,” United States v. Ruiz-Alonso, 397 F.3d 815, 820
(9th Cir. 2005), and in the event the district court does not
permit defendant to withdraw his plea, the district court shall
resentence defendant in accordance with Booker. See United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
VACATED AND REMANDED.
UNITED STATES v. DAVIS 15015
CALLAHAN, Circuit Judge, dissenting in part:
I respectfully dissent from Part A of the majority’s opinion.
The majority improperly faults the district court for applying
established law from this circuit, and creates an unworkable
standard for determining whether an attorney’s deficient
advice constitutes a fair and just reason for the withdrawal of
a guilty plea.
In my view, we are bound by the standard set forth in Hill
v. Lockhart, 474 U.S. 52, 57-59 (1985), as previously applied
to presentencing cases in United States v. Signori, 844 F.2d
635, 638 (9th Cir. 1988) and United States v. Rubalcaba, 811
F.2d 491, 494 (9th Cir. 1987). Thus, even if this panel were
to set forth a new standard, the district court could hardly be
criticized for following established case law.1
In Rubalcaba, the defendant filed a motion to withdraw his
guilty plea to conspiracy to possess and distribute heroin and
possession of a firearm. One of the defendant’s grounds for
withdrawing the plea was that he misunderstood the plea
agreement because he was denied effective assistance of
counsel. The court applied the standard from Hill and held
that “[e]ven if Rubalcaba’s attorney acted incompetently by
misinforming him of the nature of the plea bargain, Rubalcaba
has failed to show this act prejudiced him.” Id. This statement
is equally applicable to our situation.
Faced with this precedence, the majority first contends that
Rubalcaba’s application of the Hill standard is not binding,
because, here, “the fact that defendant’s counsel affirmatively
misrepresented the possible sentence that defendant might
receive distinguishes Rubalcaba . . . .” The majority holds that
“the Hill standard [only] applies when a defendant seeks to
1
The Hill standard has also been applied in the presentencing context in
cases arising in other circuits. See, e.g., United States v. Pellerito, 878
F.2d 1535 (1st Cir. 1989).
15016 UNITED STATES v. DAVIS
invalidate a plea post-sentence.” These statements are contra-
dictory, and, I submit, incorrect.
The fact that a prior panel may not have considered a par-
ticular argument, or line of thought, in reaching its bottom
line does not provide a valid basis for distinguishing other-
wise controlling precedent. Indeed, such a posture would
invite subsequent panels to distinguish precedent based solely
on the fact that prior panels had not specifically considered a
novel argument. Our jurisprudence is not, however, a perpet-
ual tabula rasa. See United States v. Johnson, 256 F.3d 895,
915 (9th Cir. 2001) (“If later panels could dismiss the work
product of earlier panels quite so easily, much of our circuit
law would be put in doubt.”) (en banc) (plurality op. of Koz-
inski, J.); see also Barapind v. Enomoto, 400 F.3d 744, (9th
Cir. 2005) (en banc) (noting that if the majority of a panel
chooses to address an issue, the court’s disposition of that
issue becomes law of the circuit).
In addition, the majority’s holding establishes an unwork-
able standard. We agree that Davis must show a “fair and just
reason” for withdrawal of his guilty plea, but disagree on
what showing a defendant has to make to meet this standard.
The district court found that Davis had not met his burden of
offering a fair and just reason because — to use the majority’s
phrase — he had not shown “that but for his counsel’s errone-
ous advice, he would have insisted on going to trial.” Nothing
in the majority’s opinion supports our disturbing the district
court’s factual determination.
The majority, however, holds that “[a]lthough the district
court may have correctly determined that defendant had not
established actual prejudice sufficient to invalidate his plea, a
defendant does not have to prove that his plea is invalid in
order to establish a fair and just reason for withdrawal before
sentencing.” This is troubling for several reasons. First, even
if this were an accurate statement of the law as permissive
UNITED STATES v. DAVIS 15017
(“may”), it does not follow that such erroneous advice from
defendant’s attorney commands the vacation of the sentence.2
Furthermore, in applying its standard to the facts of this
case, the majority fails to appreciate the district court’s view
of the facts. The district judge held an evidentiary hearing on
defendant’s motion to withdraw. She heard testimony from
both the defendant and his prior counsel, who denied having
promised the defendant that he would receive probation if he
pled guilty. The district court then made the factual determi-
nation that even accepting that counsel “grossly mischaracter-
ized the likely outcome of the case and rendered deficient
performance,” the defendant had not shown that he would
have withdrawn his guilty plea. The district court found that
there was no showing, as Davis contended, that Davis’s attor-
ney “lured” him into pleading guilty, only that the attorney
failed to properly advise him that he was unlikely to receive
probation.
Normally, the factual determination by the district court is
subject to reversal on appeal only if it constituted clear error.
The majority, unwilling to so hold, posits that the district
court failed to understand that it had “discretion to permit
defendant to withdraw his plea” even if the defendant did not
prove actual prejudice. As indicated, this statement is wrong
on the facts and wrong as a matter of law. The district court
in essence disbelieved the defendant; discretion played no role
in its denial of the motion.
Furthermore, the majority errs in suggesting that an inquiry
as to what constitutes “fair and just reason” for a plea may not
2
Here, it is noteworthy that the presentencing report was issued just
days prior to Davis’s first statement to the district court that he wished to
withdraw his guilty plea. See United States v. Nostratis, 321 F.3d 1206
(9th Cir. 2003) (noting that ‘[i]n the instant case, Nostratis moved to with-
draw his plea only after learning from the presentence report that his
likely sentencing range was 135 to 168 months and that the government
would only move for a two-level downward departure.” Id. at 1211.
15018 UNITED STATES v. DAVIS
consider the plea’s validity. The precedents relied upon by the
majority are compatible with requiring the defendant to show
that but for the deficient performance, he would have with-
drawn his guilty plea. In United States v. Ortega-Ascanio, 376
F.3d 879, 884 (9th Cir. 2004), we held that a defendant did
not have to show that a “plea was invalid.” Similarly, United
States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005) turns
on whether a plea is invalid. Neither held that a district court
could not consider the validity of a plea as a factor in deter-
mining what constitutes a “fair and just reason” for with-
drawal of a plea. Furthermore, both cases involved changed
circumstances that were not known to the defendants at the
time they entered into their plea agreements, and were
instances where there was no procedure in place to counteract
the prejudice of this lack of information.3
Here, although Davis may not have known of his attorney’s
misadvice at the time that he initially entered the plea, the trial
judge, as part of her standard trial procedure, informed Davis
of the full consequences of his plea during the plea colloquy.
Thus, the district court had the opportunity to dispel the preju-
dice of the defense counsel’s mistaken advice by advising
Davis of the full consequences of entering his plea.
Indeed, Davis’s counsel conceded that the colloquy itself is
unassailable. During the colloquy, Davis stated in open court
that he was informed that he could face a potential sentence
of over eight years in prison. Davis also denied that he was
pleading guilty based on promises not reflected in the plea
agreement. A defendant’s “solemn declarations in open court
carry a strong presumption of verity.” Rubalcaba, 811 F.2d at
494.
3
Ortega-Ascanio involved a defendant who was arguing changed cir-
cumstances based on an intervening change in the law. Garcia involved
a defendant who claimed that he would not have pled guilty if he had
known of evidence that was discovered after the time the plea was submit-
ted.
UNITED STATES v. DAVIS 15019
Once a trial judge has fully complied with the requirements
governing entry of the guilty plea, the “result should be more
than ephemeral.” United States v. Rios-Ortiz, 830 F.2d 1067,
1070 (9th Cir. 1987). Where, as here, a plea colloquy was
thorough and comprehensive, a district court cannot be said
to abuse its discretion when, following an evidentiary hearing,
it concludes that a defendant was not actually prejudiced by
relying on his attorney’s wrong advice.
As the district court correctly applied the prevailing law of
this circuit, established by Signori and Rubalcaba, when it
required Davis to show that he had been prejudiced by his
attorney’s mischaracterization of the sentence, I would affirm
this portion of the district court’s decision.4
4
I agree with the majority, however, as to Part B (The Booker Claim).