United States v. Rincon-Lopez

FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30251
Plaintiff - Appellee, D.C. No. 3:09-cr-05452-RJB-23
v.
MEMORANDUM *
JUAN PABLO RINCON-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Submitted February 6, 2012 **
Seattle, Washington
Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.
Juan Rincon-Lopez (“Rincon-Lopez”) appeals the district court’s denial of
his motion to withdraw his guilty plea to Possession of Methamphetamine with
Intent to Distribute, in violation of 21 U.S.C. § 841.
*
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. R. App. P. 34(a)(2).
In order to withdraw a plea before sentencing, a defendant need only show a
“fair and just reason” for the withdrawal. Fed. R. Crim. P. 11(d)(2)(B); United
States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005). Although this standard is
generous and must be applied liberally, United States v. Bonilla, 637 F.3d 980, 983
(9th Cir. 2011), a “change of heart” is not a fair and just reason for withdrawal of a
plea, United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990).
On appeal, Rincon-Lopez contends that his appearing before the court for
the plea colloquy so soon after being advised of the plea agreement, coupled with
the failure of the court to advise him of a $100 assessment and of the possibility of
prosecution for perjury should he lie, created confusion that led him not to
understand the nature and consequences of his plea. He also contends that his
lawyer improperly pressured him into pleading guilty.
As the district court observed, the defendant had adequate notice of the
change of plea hearing and the transcript gives no indication of confusion, lack of
understanding, or involuntariness. The court that heard the plea patiently
endeavored to ensure that Rincon-Lopez understood the plea and its consequences.
Rincon-Lopez does not contend that a proper instruction on perjury “could have at
least plausibly motivated a reasonable person in [his] position not to have pled
guilty.” Bonilla, 637 F.3d at 986. Although the court did not refer to the $100
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assessment at the plea hearing, the government did when it summarized, at the
court’s request, the elements of the offense and the penalties.
The district court did not err in concluding that Rincon-Lopez had not given
a “fair and just” reason for withdrawing the plea. The record of the plea colloquy
contradicts the reasons he did give.
AFFIRMED.
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