United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge.
Court has before it Defendant Linares's Motion to
Withdraw Guilty Plea (Dkt. 492). The Court conducted a
hearing on the motion on September 7, 2016 and now issues the
standard in the Ninth Circuit for withdrawal of a guilty plea
is fairly well established. After the court accepts a guilty
plea, but before it imposes sentence, a defendant may
withdraw the plea if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). The burden is on the defendant to show
the fair and just reason. United States v.
Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004). Fair
and just reasons 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.
McTiernan, 546 F.3d 1160, 1167 (9th Cir.2008). Notably,
the Ninth Circuit has indicated that a defendant cannot
withdraw his plea because he realizes that his sentence will
be higher than he had expected.” United States v.
Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003).
review of the transcript of the change of plea
hearing, plus the evidence and argument presented
at the hearing on the motion to withdraw, indicate that the
defendant has not met his burden. He gives a two-part
argument for wanting to withdraw his guilty plea - the
recommended guideline range is above what he expected it to
be, and he speaks very little English so he did not fully
understand the agreement.
recommended guideline range is based on facts that were
contained in an earlier copy of the plea agreement which had
been translated into Spanish (written) and provided to
Linares. By his own testimony, he had a week or two to review
that plea agreement. The only change made to the final plea
agreement was the removal of one sentence at the request of
Linares. The removed sentence stated a specific amount of
controlled substance which the parties would agree was
distributed by Linares. That number would have resulted in a
specific base offense level. Linares wanted it removed and it
then signed the plea agreement without that one sentence. The
signed plea agreement contains language indicating that it
was read to him by an interpreter, that he carefully reviewed
every part of the agreement with his attorney, that he
discussed all of his rights with his attorney, and that no
other promises or inducements had been made to him. Plus, at
the change of plea hearing he stated, under oath, that he had
discussed the plea agreement with his attorney. And he
agreed, again under oath, with the Government's factual
basis for the crime, after hearing it from the interpreter.
these circumstances, the Court finds that Linares
participated in his plea negotiations, and willingly signed a
plea agreement he understood. His testimony at the change of
plea hearing does nothing to change that. In fact, his
testimony was more inconsistent than anything. He testified
that he did not sign the initial version of the plea
agreement because he was “not in agreement with any of
the terms” of it. Yet, he later signed a plea agreement
that was identical to the initial version, except for one
sentence that had been removed at his request. He then
testified that he wanted the offense level specified in the
plea agreement - but it is undisputed that he is the one who
wanted it removed. Clearly, Linares and the Government
negotiated about a base offense level, could not agree on
one, and ultimately agreed to a plea agreement which did not
contain an agreed upon base offense level. That Linares did
not get everything he wanted in the plea agreement - but
signed it after fully reviewing it in Spanish and with an
interpreter - and ultimately received a recommended base
offense level he did not want, is not grounds for withdrawal
of the guilty plea. As explained above, a defendant cannot
withdraw his guilty plea because his sentence will be higher
than he expected. Nostratis, 321 F.3d at 1211.
Linares has not shown “a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). Accordingly, the Court will deny the motion and
set this case for sentencing.
Defendant Linares's Motion to Withdraw Guilty Plea (Dkt.
492) is DENIED.
 The change of plea hearing was
conducted by visiting District Judge Dee Benson from the
District of Utah. I reviewed the official transcript of that