U.S. v. Davis

• Decision Date: 02 November 2005
• Docket Number: No. 04-50030.,04-50030.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford A. DAVIS, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 802

428 F.3d 802

UNITED STATES of America, Plaintiff-Appellee, v. Clifford A. DAVIS, M.D., Defendant-Appellant.

No. 04-50030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2005.

Filed June 9, 2005.

Amended November 2, 2005.

Randy S. Kravis, Studio City, CA, for the defendant-appellant.

Ronald L. Cheng, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding. D.C. No. CR-00-1132-MMM.

Before GRABER and CALLAHAN, Circuit Judges, and BREYER,^* District Judge.

Opinion by District Judge BREYER; Partial Dissent by Judge CALLAHAN,

ORDER

The opinion filed on June 9, 2005, slip op. 6753, and appearing at 410 F.3d 1122 (9th Cir.2005), is replaced by the amended opinion and dissent filed concurrently with this order.

Petitions for rehearing or for rehearing en banc may be filed.

OPINION

BREYER, District Judge.

We must decide whether a district court has discretion to permit a defendant to withdraw his guilty plea prior to sentencing when the district court finds that defense counsel "grossly mischaracterized" the defendant's possible sentence, but also finds that the mischaracterization did not actually prejudice the defendant as is required to invalidate a plea post-sentence. We answer "yes." Because the district court did not believe it had such discretion, we vacate and remand for reconsideration of defendant's motion to withdraw his plea.

FACTUAL AND PROCEDURAL BACKGROUND

A grand jury indicted defendant, a physician, for conspiracy to distribute Dilaudid, a Schedule II controlled substance, and for twelve separate distribution counts. After several continuances, trial was scheduled for October 23, 2001. Just before trial, defendant, then aged 72, pleaded guilty pursuant to a plea agreement to a second superseding information charging defendant with two counts of violating 21 U.S.C. § 843(b), using a telephone to facilitate a conspiracy to distribute illegal narcotics by means of false and fraudulent drug prescriptions. The plea agreement unambiguously stated that defendant's potential maximum sentence was eight years. During the extensive Rule 11 plea colloquy, the government, at the district court's request, again stated that the defendant faced a maximum sentence of eight years, and further emphasized that the government might seek an offense level which would place defendant's guideline range well in excess of the eight-year statutory maximum.

In February 2002, the United States Probation Office issued a Presentence Report ("PSR") in which it recommended that the court sentence defendant to the statutory maximum of eight years' imprisonment. Although defendant had stipulated to illegally issuing only 16 prescriptions for Dilaudid, the PSR calculated defendant's offense level based on defendant having illegally issued additional prescriptions. Defendant subsequently filed a motion for new counsel (defendant's retained counsel had become appointed counsel around the time of defendant's plea).

The district court held a hearing on defendant's request. During the in camera portion of the hearing, defendant explained that he wanted new counsel because, among other reasons, he wanted to withdraw his plea, but his attorney was not supportive of the idea. Defendant's counsel stated on the record that defendant's decision to plead guilty was very difficult, and that defendant was uncertain as to what to do up to the very last minute. After additional inquiry, the district court determined that defendant could continue to communicate with his counsel and therefore denied the request for substitute counsel.

Defendant nonetheless came up with the funds to hire new counsel, and before he was sentenced, filed a motion to withdraw his guilty plea. Defendant argued that his former counsel had pressured him into entering the plea, and that his counsel had rendered ineffective assistance by advising defendant that he would receive probation if he pleaded guilty.

The district court held an evidentiary hearing on defendant's motion. Defendant and defendant's son testified in support of the motion to withdraw. Defendant's son testified that the weekend before defendant pleaded guilty, defendant told him that he might have to plead guilty in order to avoid jail time. The government called defendant's former attorney as a witness. The former attorney denied having promised that defendant would receive probation if he pleaded guilty, but he admitted that he advised defendant that his potential sentencing range was probation to eight years.

The district court subsequently issued a 27-page written order denying defendant's motion to withdraw his plea. After acknowledging that the court could permit defendant to withdraw his plea if he shows a "fair and just reason" for doing so, the district court applied the two-part test for invalidating a guilty plea based on ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The court rejected defendant's assertion that his former attorney had absolutely promised that he would receive probation, but nonetheless found that counsel had rendered constitutionally deficient performance when advising defendant on the entry of the guilty plea:

Because there was little, if any, likelihood that defendant might receive a probationary sentence in this case, and because mention of such a possibility significantly skewed the sentencing range [counsel] presented, . . . [counsel] grossly mischaracterized the likely outcome of the case and rendered deficient performance in advising defendant regarding the entry of a guilty plea.

The court next concluded, however, that defendant had not demonstrated actual prejudice; that is, he had not proved that but for his counsel's deficient performance he would not have pleaded guilty. The court based this conclusion on the Rule 11 plea colloquy and, in particular, on the fact that defendant was told, and stated that he understood, that he could be sentenced to eight years in prison. For this reason the district court denied defendant's motion to withdraw his plea.

At the subsequent sentencing hearing, the court adopted the PSR's findings. The court also found that defendant was likely to die within the next five years because of a heart condition, but declined to depart downward; instead, the court sentenced defendant to the statutory maximum of eight years.

Defendant appeals the district court's denial of his motion to withdraw his plea. He also argues that in the light of the United States Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his case should be remanded to the district court for resentencing.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court's denial of a Rule 11 motion to withdraw a guilty plea pursuant to 28 U.S.C. § 1291. United States v. Nostratis, 321 F.3d 1206, 1207 (9th Cir.2003). We review for an abuse of discretion the district court's denial of such a motion. United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004). "A district court abuses its discretion when it rests its decision on an inaccurate view of the law." United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir.2005).

DISCUSSION

A. The Motion To Withdraw The Plea

A district court may permit a defendant to withdraw a guilty plea before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B).¹ After a defendant is sentenced, however, a "plea may be set aside only on direct appeal or collateral attack." Fed. R.Crim.P. 11(e).

The defendant has the burden of demonstrating a fair and just reason for withdrawal of a plea, see Rule 11(d)(2)(B); however, the standard is applied liberally. See Garcia, 401 F.3d at 1011; Ortega-Ascanio, 376 F.3d at 883; United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998); see also United States v. Signori, 844 F.2d 635, 637 (9th Cir.1988) (stating that a motion to withdraw a plea pre-sentence should be "freely allowed"). "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." Ortega-Ascanio, 376 F.3d at 883(emphasis added).

Here, defendant proffered a reason for withdrawal that he claimed did not exist at the time of his plea; namely, his belief (based on his attorney's advice) that if he pleaded guilty he would receive probation. Arguably, he first learned that there was virtually no chance that he would receive probation when he received the PSR. The district court found that counsel had not absolutely promised that defendant would receive probation, but it also found that counsel had "grossly mischaracterized" defendant's possible sentence and had rendered deficient performance by advising defendant that his likely sentence was probation to eight years. See Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir.1994) (noting that a defendant can prove that his counsel engaged in constitutionally deficient performance by showing that counsel grossly mischaracterized the likely outcome) (citing Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.1986)), superseded by statute on other grounds as stated in Morris v. Woodford, 229 F.3d 775, 779(9th Cir.2000). Under the Sentencing Guidelines there was little, if any, possibility that defendant would be sentenced to probation or anything close to probation.² Again defendant arguably did not learn of his attorney's gross mischaracterization until he received the PSR.

The district court nonetheless denied defendant's motion because defendant did not prove actual prejudice as required by Hill, 474 U.S. at 58-59, 106 S.Ct. 366. In Hill...