DAVID G. CAMPBELL, District Judge.
At his sentencing hearing on August 14, 2013, Defendant Ysidro Valdez asked to withdraw his guilty plea to a charge of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Defendant signed the plea agreement more than one year ago, on July 10, 2012, and the Court accepted it on August 13, 2012. Doc. 74. The Court took Defendant's request under advisement to determine whether Defendant had shown a fair and just reason to withdraw his plea as required by Federal Rule of Criminal Procedure 11(d)(2). For the reasons that follow, the Court finds that Defendant has not met this standard and will deny Defendant's request to withdraw his plea. The Court will reset sentencing for September 9, 2013 at 1:30 p.m.
Defendant was indicted on December 27, 2011, on one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 846, and one count of knowingly or intentionally possessing with intent to distribute and aiding and abetting the distribution of 50 grams or more of methamphetamine, id. at § 841(a)(1) & (b)(1)(A)(viii). Doc. 20.
The charges arose from a Drug Enforcement Administration ("DEA") undercover operation conducted on December 7, 2011. As recounted and admitted in Defendant's plea agreement, an undercover officer arranged to purchase a pound of methamphetamine from Jesus Adrian Atondo and his father, Guillermo Atondo-Castaneda. Doc. 67 at 6. Guillermo Atondo-Castaneda met the undercover officer at a Target store and said his daughter was en route to deliver the methamphetamine. Id. at 6-7. Defendant arrived at the Target store driving a 2001 Nissan Pathfinder in which his girlfriend, Claudia Atondo (Atondo-Castaneda's daughter), was a passenger. Id. at 7. Atondo-Castaneda pointed to the Nissan, and the undercover officer walked to the car where Defendant and Claudia Antondo showed him a quantity of suspected methamphetamine. Id. Law enforcement officers arrested Atondo-Castaneda, Claudia Atondo, and Defendant at the scene, and seized 464 grams of methamphetamine. Id.
On January 27, 2012, Defendant participated in a free talk with prosecutors, during which he apparently told them of his and the others' involvement in the case. As documented in the pre-sentence report, Defendant told prosecutors that when the undercover officer approached his vehicle he motioned to a cooler on the floor between Claudia Atondo's feet, and she opened the cooler to show the methamphetamine.
On July 10, 2012, Defendant signed a plea agreement in which he agreed to plead guilty to Count 1 of the indictment and the government agreed to dismiss Count 2. Doc. 67. Defendant appeared the same day before Magistrate Judge Steven P. Logan to change his plea. He was represented by his court-appointed attorney, David Lockhart. During questioning before Judge Logan, both Mr. Lockhart and Defendant confirmed that Defendant had reviewed and understood all the terms of the plea agreement.
The plea agreement is very favorable to Defendant. The government agrees to recommend that Defendant receive a two-level minor role adjustment and a three-level adjustment for acceptance of responsibility, and that his sentence run concurrently with a 14-year sentence he is now serving in state prison for sexual assault. Doc. 67. The government has also requested that Defendant receive a three-level downward departure under Guidelines section 5K1.1 for cooperation provided during his free talk. The result of these adjustments and departures would be a sentencing guideline range of 57 to 71 months, with the government recommending 57 months to be served concurrently with Defendant's state term. Defendant would face no additional time in custody as a result of such a sentence.
The Court reviewed these very favorable terms with Defendant at the sentencing hearing, and Defendant confirmed that he understood them. The Court explained that if Defendant withdraws his plea he would go to trial and, if he prevails, would still serve the remainder of his 14-year state sentence. If found guilty, he would face a mandatory minimum sentence of ten years, which could be in addition to, rather than concurrent with, his state sentence. Defendant's current attorney, Neil LaBarge, stated for the record that he had advised Defendant that admissions made in his free talk and elsewhere would make it very difficult for him to convince a jury of his innocence at trial.
Defendant states that he nonetheless wants to withdraw his guilty plea because his previous counsel, Mr. Lockhart, gave him an erroneous definition of conspiracy. He states that Mr. Lockhart led him to believe that his mere presence in the car was enough to show conspiracy, but that Defendant later learned through his own study that conspiracy requires an agreement of two or more minds to carry out a scheme. He asserts that he tried to drive away and remove himself from the conspiracy in this case, and that if he had known the car contained methamphetamine he would not have been in it. He wants to go to trial to contend for his innocence.
II. Legal Standard.
"It is well-established that a defendant has no right to withdraw his guilty plea, and that a withdrawal motion is committed to the sound discretion of the district court." United States v. Signoria, 844 F.2d 635, 637 (9th Cir. 1988) (citing United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985), cert. denied, 479 U.S. 835 (1986); United States v. Castello, 724 F.2d 813, 814 (9th Cir. 1984), cert. denied, 467 U.S. 1254 (1984); United States v. King, 618 F.2d 550, 551 (9th Cir. 1980)). To withdraw a guilty plea that has been accepted by the court, a defendant must show "a fair and just reason." Fed. R. Crim. P. 11(d)(2)(B). "The fair and just reason' standard... is generous and must be applied liberally." United States v. Bonillo, 637 F.3d 980, 983 (9th Cir. 2011); see also United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009); United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008). A defendant may not, however, withdraw his guilty plea "simply on a lark." United States v. Hyde, 520 U.S. 670, 676 (1997). "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 entered his plea." United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). "Erroneous or inadequate legal advice may... constitute a fair and just reason for plea withdrawal." McTiernan, 546 F.3d at 1167. Where a defendant seeks to withdraw a plea for this reason, he must show that proper advice "could have at least plausibly motivated a reasonable person in [his] position not to have pled guilty." United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005).
A. Improper Legal ...