United States v. Pedro Morales-Bravo , 650 F. App'x 530 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-10004 and 15-10038
Plaintiff - Appellee, D.C. No. 4:14-cr-00997-JGZ-JR-1
v.
MEMORANDUM*
PEDRO MORALES-BRAVO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted May 13, 2016**
San Francisco, California
Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.
Pedro Morales-Bravo pled guilty to one count of transportation of illegal
aliens for the purpose of commercial advantage or private financial gain in
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for
decision, without oral argument. See Fed. App. P. 34(a) (2)
***
The Honorable Robert D. Sack, Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
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violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(i), pursuant to a plea
agreement with the Government in which he agreed to waive certain rights,
including his right to appeal. After substituting counsel, he filed a motion to
withdraw his guilty plea, which the district court denied without a hearing. He
served a six-month term of imprisonment, and was released on August 7, 2015. He
now appeals — through both an interlocutory and a direct appeal — the denial of
his motion to withdraw the plea. He also appeals his sentence on the ground that
his filing of the notice of interlocutory appeal of the motion to withdraw the plea
deprived the district court of jurisdiction to sentence him.
We dismiss the interlocutory appeal for lack of appellate jurisdiction, and
affirm Morales-Bravo's sentencing on direct appeal. A ruling on a motion to
withdraw a guilty plea is an interlocutory step in criminal proceedings, and as such
it is not properly the subject of an interlocutory appeal. See People of Territory of
Guam v. Estrebor, 848 F.2d 1014, 1015 (9th Cir. 1988); United States v. Martin,
611 F.2d 260, 261 (9th Cir. 1979); see also United States v. Goddard, 638 F.3d
490, 493 (6th Cir. 2011); United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir.
1987). And because Morales-Bravo's interlocutory appeal was improper, it did not
deprive the district court of jurisdiction to sentence him. See Estate of Conners by
Meredith v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993) (The "transfer of
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jurisdiction from the district court to the court of appeals is not effected . . . if a
litigant files a notice of appeal from an unappealable order.").
We also affirm on direct appeal the district court's denial of Morales-Bravo's
motion to withdraw his guilty plea. We need not decide whether Morales-Bravo's
appeal waiver encompasses his direct appeal, for we conclude that even if the
waiver does not apply here, the district court did not abuse its discretion in denying
the motion. See United States v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015).
Morales-Bravo argues that he demonstrated a "fair and just reason for
requesting the withdrawal," Fed. R. Crim. P. 11(d)(2)(B), because the plea
colloquy was inadequate under Rule 11; he had demonstrated his factual and legal
innocence; his earlier counsel provided ineffective assistance in advising him to
plead guilty; and the district court should have conducted an evidentiary hearing on
the motion. None of these arguments are persuasive. Morales-Bravo's plea
colloquy satisfied the requirements of Rule 11; he was apprehended while
sheltering undocumented aliens in his truck, he testified that he knew the aliens
were in the United States illegally, and the evidence in the record supports a
conclusion that he expected to be compensated in some way for his doing so; the
legal advice Morales-Bravo received regarding whether to plead guilty was not
inadequate in light of the adequate factual and legal basis for all elements of the
offenses charged; and no factual disputes relevant to the motion required resolution
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by the district court via an evidentiary hearing. For these reasons, the district
court did not abuse its discretion in denying Morales-Bravo's motion to withdraw
his guilty plea.
Judgment AFFIRMED.
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