United States v. Garcia

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30172
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00125-RSL
EDWARD ALAN GARCIA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 14, 2005—Seattle, Washington
Filed March 16, 2005
Before: Betty B. Fletcher, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge B. Fletcher
3319
3322 UNITED STATES v. GARCIA
COUNSEL
Robert W. Goldsmith, Seattle, Washington, for the defendant-
appellant.
Bruce F. Miyake, Assistant U.S. Attorney, Seattle, Washing-
ton, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant-appellant Edward Alan Garcia (“Garcia”)
appeals the district court’s denial of his motion to withdraw
his guilty plea to a charge of manufacture of methamphet-
amine and a related firearm charge. After his plea was
accepted but before he was sentenced, Garcia moved to with-
draw his plea on the basis of new evidence and an intervening
change in the law. Because the newly discovered evidence
constituted a “fair and just reason” to permit him to withdraw
the plea prior to sentencing, we vacate the judgment of con-
viction, set aside the guilty plea, and remand for further pro-
ceedings.
I. BACKGROUND
In August 2002, a confidential informant told King County,
Washington, local law enforcement officers that Garcia was
UNITED STATES v. GARCIA 3323
involved in selling and manufacturing methamphetamine at
his residence. The informant told detectives that he had been
present when Garcia cooked methamphetamine in the resi-
dence, that Garcia had three loaded firearms, and that Garcia
often answered the door with a loaded shotgun.
On September 6, 2002, officers executed a search warrant
at Garcia’s alleged residence in Renton, Washington. When
the officers arrived, Garcia and two women were in the down-
stairs portion of the house, and two other individuals —
including the owner of the house, Carol Coley — were in the
upstairs portion. When Garcia and two women emerged from
the downstairs portion of the house, an officer shouted, “Po-
lice with a search warrant!” and Garcia and his companions
ran back into the house. One of the women then came out and
told the officers that Garcia and the other woman remained
inside with two shotguns. A SWAT team arrived, coaxed Gar-
cia and the other woman out of the house, and took them into
custody.
Officers found a bag of white powder, a scale, and a note-
book in the upstairs portion of the house. In the downstairs
area, officers found three firearms. A methamphetamine lab
and related components were found in the downstairs area and
garage. Coley told officers that she lived in the upstairs por-
tion of the house and that she rented the downstairs portion
to Garcia, whom she claimed had lived there for the previous
month-and-a-half to two months and was involved with drugs
and guns. Coley also admitted to being a user of methamphet-
amine.
Garcia pled guilty to one count of manufacture of metham-
phetamine, 21 U.S.C. § 841(a)(1), and one count of posses-
sion of a firearm in furtherance of a drug trafficking offence,
18 U.S.C. § 924(c), in exchange for the government’s dis-
missal of two other firearm charges and a combined sentence
of 120 months. The plea agreement stipulated that either party
could withdraw if a different sentence was imposed.
3324 UNITED STATES v. GARCIA
At his plea colloquy before the magistrate judge, Garcia
explained, through counsel, that he did not concede his guilt,
but rather was entering into the agreement only for the pur-
pose of limiting his sentencing exposure, which (by the gov-
ernment’s calculation) was 40 years to life for all four counts.
The government, while formally refusing to accept an “Alford
plea,”1 nonetheless agreed to allow Garcia to stipulate that he
was admitting to facts “for the purposes of this plea.” When
asked to confirm the government’s statement of the facts of
the offenses to which he was pleading, Garcia responded:
“For the purposes of this plea I agree.” Garcia then confirmed
that he was waiving his right to challenge the “independent
basis in fact” for the elements of the offense, and that his
decision to plead guilty was knowing, informed, and volun-
tary. Finally, when the judge asked him for his plea, Garcia
responded, “For the purposes of the plea I plead guilty.”
Five months after entering the plea — but before he was
sentenced — Garcia moved to withdraw his guilty plea based
on an intervening Ninth Circuit decision, United States v.
Wenner, 351 F.3d 969 (9th Cir. 2003), which Garcia argued
would have operated to disqualify him as a “career offender”
under the Federal Sentencing Guidelines. Garcia argued that
he was entitled to withdraw his plea because he and the gov-
ernment had, at the time of the plea, been operating under a
“mutual mistake about the application of the law.”
Several weeks later, Garcia supplemented his motion with
an additional reason in support of withdrawal: new evidence
from a newly discovered witness, Crystal McClurg.2
1
In North Carolina v. Alford, 400 U.S. 25, 37-38 (1970), the Supreme
Court held that a guilty plea can be constitutionally valid in spite of the
defendant’s professions of innocence, at least where there is a factual basis
for the plea and the plea is voluntary, knowing, and intelligent.
2
This witness was unknown to the defense at the time of the plea appar-
ently because the affidavit in support of the search warrant mentioned only
that “Crystal” (with no surname given) was living at the residence where
Garcia was arrested.
UNITED STATES v. GARCIA 3325
McClurg’s declaration directly contradicts Carol Coley’s
statement to the authorities. According to McClurg, who had
lived at the house until four days before the police executed
the search warrant, Garcia never lived at the house, but
merely “would come over occasionally and hang out.”
Though McClurg no longer lived at the house when Garcia
was arrested there, she noted that the day before she moved
out, “a man named Mitch and his friend moved into the down-
stairs room where the three firearms were seized.” Addition-
ally, McClurg declared that she recognized two of the seized
firearms, which she thought belonged to Carol Coley’s hus-
band and which she had never seen in Garcia’s possession.
The district court denied Garcia’s motion to withdraw his
plea. Though the district court ruled after Garcia supple-
mented the motion with his claim of new evidence, the court’s
initial ruling considered only Garcia’s change-in-law argu-
ment. Applying a four-part test borrowed from out of circuit,
the district court examined the plausibility of the reasons for
the withdrawal, the timing of the motion, whether Garcia had
asserted his innocence, and whether the original plea was
involuntary in violation of the standards set forth in Federal
Rule of Criminal Procedure 11. The district court found that
the plausibility of the reason for withdrawal weighed in Gar-
cia’s favor, although the district court found it unclear
whether Wenner would have affected Garcia’s status as a
career offender. However, the other three factors, in the
court’s view, weighed against permitting withdrawal: the
court faulted Garcia for waiting two months after the Wenner
decision before filing his withdrawal motion; the court found
that Garcia had not actually claimed innocence; and (most
importantly, in the court’s view) the court determined that
Garcia had entered his initial plea voluntarily, intelligently,
and knowingly. The court therefore denied the motion.
Citing the court’s failure to address the McClurg declara-
tion, Garcia moved for reconsideration. The court denied the
motion, explaining that Garcia’s new evidence did not change
3326 UNITED STATES v. GARCIA
his previous failure to claim innocence or the voluntariness of
the initial plea.
The district court sentenced Garcia to 114 months in prison,
five years of supervised release, and a $200 penalty assess-
ment. Garcia now appeals, and we have jurisdiction under 28
U.S.C. § 1291.
II. ANALYSIS
Denial of a motion to withdraw a guilty plea is reviewed
for abuse of discretion. United States v. Ortega-Ascanio, 376
F.3d 879, 883 (9th Cir. 2004). A court abuses its discretion
when it rests its decision on an inaccurate view of the law.
Richard S. v. Dep’t of Developmental Servs., 317 F.3d 1080,
1085-86 (9th Cir. 2003).
[1] A defendant may withdraw a guilty plea after its accep-
tance but before sentencing if the defendant shows “a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). As we have recently explained, the “fair and just
reason” standard “is applied liberally.” Ortega-Ascanio, 376
F.3d at 883 (citation omitted). “Fair and just reasons for with-
drawal include inadequate Rule 11 plea colloquies, newly dis-
covered evidence, intervening circumstances, or any other
reason for withdrawing the plea that did not exist when the
defendant entered his plea.” Id. (emphasis added).
[2] We consider first whether Garcia’s claim of newly dis-
covered evidence, specifically the McClurg declaration, pro-
vides a “fair and just reason” for withdrawal. While 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. See United States v. Mor-
gan, 567 F.2d 479, 493 (D.C. Cir. 1977) (“Where the accused
UNITED STATES v. GARCIA 3327
seeks to withdraw his plea of guilty before sentencing, on the
ground that he has a defense to the charge, the District Court
should not attempt to decide the merits of the proffered
defense, thus determining the guilt or innocence of the defen-
dant.” (citation omitted)).
[3] Crystal McClurg’s declaration is important both
because it directly contradicts part of Carol Coley’s statement
against Garcia and because it distances Garcia from the house
where the firearms and drug paraphernalia were seized. The
McClurg declaration thus raises new questions about Garcia’s
involvement in the illegal activity at the house. Had Garcia
known about this evidence earlier, he may well have changed
his mind about whether to plead guilty. We need not hypothe-
size about the ripple 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
at least plausibly motivated a reasonable person in Garcia’s
position not to have pled guilty had he known about the evi-
dence prior to pleading. McClurg’s statement therefore consti-
tutes newly discovered evidence that is sufficient to justify the
withdrawal of Garcia’s plea under the “fair and just reason”
standard.3
The district court’s denial of Garcia’s motion relied on
three faulty premises. First, the district court cited the fact that
Garcia’s plea was voluntary, knowing, and intelligent as “the
most important factor” to the court’s determination that Gar-
cia should not be permitted to withdraw his plea. This treat-
ment is inconsistent with our precedent.4
3
Because Garcia was entitled to withdraw his plea on the basis of newly
discovered evidence, we need not consider Garcia’s alternative argument
that the intervening change in sentencing law is also a “fair and just rea-
son” for permitting withdrawal of the plea.
4
Out of fairness to the district court, we observe that we decided the key
case on this point several months after the district court ruled on Garcia’s
motion.
3328 UNITED STATES v. GARCIA
[4] It makes perfect sense that a defendant’s showing that
his plea was not voluntary would be “the most important fac-
tor” supporting withdrawal, as a plea that is involuntary, unin-
telligent, or uninformed is an invalid plea. See Brady v.
United States, 397 U.S. 742, 748 (1970). But while a plea’s
invalidity qualifies as a “fair and just reason” for permitting
withdrawal, see, e.g., United States v. Toothman, 137 F.3d
1393, 1400-01 (9th Cir. 1998), it is not a prerequisite to with-
drawal. In the recent case of United States v. Ortega-Ascanio,
we squarely rejected the proposition that the fact that a plea
is voluntary, knowing, and intelligent forecloses an attempt to
withdraw it prior to sentencing. See 376 F.3d at 884. We con-
cluded that, on “a fair reading of the broad language” of Rule
11(d)(2)(B), the “fair and just reason” standard is simply more
generous than the standard for determining whether a plea is
invalid. Id. Accordingly, the fact that a plea was voluntary,
knowing, and intelligent cannot count against a defendant’s
attempt to withdraw it prior to sentencing, unless the defen-
dant’s only asserted “fair and just reason” for withdrawing the
plea is lack of voluntariness itself. To conclude otherwise
would render a motion to withdraw a plea prior to sentencing
“nothing more than an expedited hearing on a challenge to the
voluntariness of the plea.” Id.
[5] The second difficulty with the district court’s order is
its consideration of Garcia’s supposed failure to claim inno-
cence as a factor weighing against Garcia’s motion to with-
draw his plea. Setting aside the question of whether Garcia’s
statements at his plea colloquy — including his protestations
that he was pleading guilty only because he feared an exorbi-
tant sentence — were, in the words of the district court, “far
from a claim of innocence,” we conclude that a defendant’s
failure to proclaim his innocence should not count against him
when he seeks to withdraw his plea under the “fair and just
reason” standard.
[6] Like the voluntariness of the plea, a defendant’s claim
of innocence can clearly be considered in support of his
UNITED STATES v. GARCIA 3329
motion to withdraw a plea: for example, we have recognized
a claim of legal innocence as a “fair and just” reason for with-
drawal of a plea. See Ortega-Ascanio, 376 F.3d at 883, 887.
But finding that a defendant’s failure to claim innocence
weighs against his motion to withdraw runs contrary to the
language of the “fair and just reason” standard. The standard
asks whether the defendant has presented a “fair and just rea-
son” for withdrawal, not whether the original plea was likely
erroneous. Though many legitimate reasons for withdrawal
relate to a defendant’s legal or factual innocence, some defen-
dants may have valid reasons for withdrawal that have noth-
ing to do with innocence. For example, newly discovered
evidence might bolster a defendant’s defense, partial defense
or other mitigating circumstance; these are perfectly legiti-
mate reasons to withdraw a plea, regardless of whether the
defendant has asserted his innocence. See, e.g., Morgan, 567
F.2d at 493 (holding that the district court abused its discre-
tion when it refused to allow a defendant to withdraw his
guilty plea under the “fair and just reason” standard on the
basis of new evidence bolstering an insanity defense). There-
fore, even assuming the district court’s characterization of
Garcia’s plea colloquy is correct, the court should not have
held against him his failure to assert his innocence.
[7] The district court’s final reason for denying Garcia’s
motion was his delay in filing it.5 We have looked to a defen-
dant’s delay in moving to withdraw a plea as a barometer of
the defendant’s candor with the court about his reasons for
withdrawal. See, e.g., Ortega-Ascanio, 376 F.3d at 886 (“The
delay alone does not suggest that [defendant’s given reason]
was not the reason for [his] motion to withdraw . . . .”);
United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir.
2003) (concluding that defendant’s two-year delay in moving
to withdraw his plea weighed against permitting withdrawal
5
Garcia filed his motion two months after the publication of the Wenner
decision. It is not clear from the record when he became aware of Crystal
McClurg.
3330 UNITED STATES v. GARCIA
because it “suggest[ed] that the withdrawal was intended to
serve a different purpose” than the defendant claimed (citation
and internal quotation marks omitted)); United States v. Alber,
56 F.3d 1106, 1111 (9th Cir. 1995) (concluding that the dis-
trict court did not abuse its discretion in finding that the
defendant’s delay cast doubt upon the sincerity of his stated
reason for withdrawal). But we have never held that delay
standing alone militates against permitting withdrawal of a
plea. Delay itself does not make an otherwise valid reason for
withdrawal any less “fair” or “just.” A defendant’s delay may
be attributable to factors — such as continuances of sentenc-
ing, see Ortega-Ascanio, 376 F.3d at 886, or even practical
matters such as the amount of time it takes a busy attorney
competently to research and prepare a motion to withdraw a
plea — that are entirely unrelated to the legitimacy or the sin-
cerity of the defendant’s reasons for wishing to withdraw his
plea.
[8] Here, the district court’s first order counted the mere
fact of Garcia’s delay against him without considering
whether the delay suggested insincerity or duplicity on Gar-
cia’s part.6 There is no suggestion or indication on the record
that Garcia’s reasons for withdrawal were not bona fide, or
that the government suffered great prejudice as a result of
Garcia’s delay. Therefore the amount of time it took him to
file his motion to withdraw his plea should not have been
counted against him.
III. CONCLUSION
[9] The evaluation of a pre-sentence motion to withdraw a
plea turns on whether the defendant has shown “a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
6
In its second order, the court simply explained — in response to Gar-
cia’s objection to the court’s consideration of the amount of time Garcia
took to file his motion — that denial of the motion would be justified
based on the voluntariness and innocence factors alone.
UNITED STATES v. GARCIA 3331
11(d)(2)(B). Garcia’s newly discovered evidence — the
McClurg declaration — constituted such a reason. Instead of
focusing on the “fair and just reason” inquiry, the district
court improperly considered the voluntariness of Garcia’s
plea, his supposed failure to claim innocence, and the timing
of the motion, as reasons to deny Garcia’s motion to withdraw
his plea. This was an abuse of discretion. We vacate the judg-
ment of conviction, set aside the guilty plea, and remand for
further proceedings consistent with this opinion.
VACATED AND REMANDED.