U.S. v. Rios-Ortiz

• Decision Date: 22 October 1987
• Docket Number: D,No. 86-5340,RIOS-ORTI,86-5340
• Citation: 830 F.2d 1067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramonefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1067

830 F.2d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Ramon RIOS-ORTIZ, Defendant-Appellant.

No. 86-5340.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1987.

Decided Oct. 22, 1987.

Marilyn Butler, Los Angeles, Cal., for defendant-appellant.

Brian Hennigan, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, NELSON and NORRIS, Circuit Judges.

SCHROEDER, Circuit Judge:

Appellant Ramon Rios-Ortiz pleaded guilty and was convicted of assaulting a border patrol officer. Following the plea, but before final sentencing, he moved to withdraw the plea pursuant to Federal Rule of Criminal Procedure 32(d), stating that he had changed his mind and wished to go to trial on a theory of self-defense. The district court denied the motion and Rios-Ortiz appeals.

Under Rule 32(d) of the Federal Rules of Criminal Procedure, the court may permit the presentence withdrawal of a guilty plea upon a showing by the defendant of "any fair and just reason." ¹ The issue presented on appeal is whether the district court abused its discretion in denying the defendant's motion to withdraw his guilty plea.

On May 19, 1986, Rios-Ortiz pleaded guilty to assault. The facts as presented by Rios-Ortiz at the time he pleaded guilty were not challenged by the government. Rios-Ortiz said that a female undercover officer approached him on a sidewalk and said "Immigration," showed him the gun under her coat, and directed him to cross the street with her. The officer told Rios-Ortiz that they would wait for a senior officer, and he could then leave upon proving his citizenship.

After initially complying with the officer's request, Rios-Ortiz then began to walk away. The officer grabbed him and Rios-Ortiz hit her. The officer hit him back. Rios-Ortiz then struck the officer on her forehead, swung her around by her hair, and then let her go. When the officer reached for her gun, Rios-Ortiz grabbed it, but pointed the gun away from them and relinquished it to a third party.

The district court accepted and entered the plea in full compliance with Federal Rule of Criminal Procedure 11's requirements to ensure that the plea was knowing, voluntary and with a factual basis. On June 16, 1986, the court ordered a psychological study as authorized in 18 U.S.C. Sec. 4205(c).

On September 5, 1986, before completion of the psychological study and before final sentencing, Rios-Ortiz moved to withdraw his guilty plea so that he could raise the possibility of self-defense before a jury. The district court denied the motion. The court sentenced him to three years in the Attorney General's custody.

The denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir.1985). Rule 32(d) provides that before sentence is imposed, "the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255." Motions for withdrawal made before disposition under 18 U.S.C. Sec. 4205(c) are thus determined under the "fair and just reason" standard, which is a more lenient test than that applied on post-sentencing review. Fed.R.Crim.P. 32(d), Notes of Advisory Committee, 1983 Amend.

Rios-Ortiz does not challenge the adequacy of his Rule 11 hearing, nor does he allege newly discovered evidence, intervening circumstances, or any other reason for withdrawing his plea that did not exist when he pleaded guilty. Instead, he urges an extremely lenient interpretation of Rule 32(d), arguing that if there is no prejudice to the government, a district court should permit the presentencing withdrawal of a guilty plea whenever the defendant has a good faith change of heart.

We decline to interpret Rule 32(d) in that manner for three reasons which can be summarized as follows. First, the Rule itself places the burden of showing a fair and just reason for withdrawal of a guilty plea on the defendant. Second, an interpretation requiring the district court to grant such a motion in the absence of prejudice would interfere with the district court's ability to exercise the discretion we have held the Rule entails. Third, the interpretation proposed by appellant is inconsistent with Rule 11's purpose of ensuring some finality at the time pleas are accepted.

In United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986), and United States v. Castello, 724 F.2d 813, 814 (9th Cir.), cert. denied, 467 U.S. 1254, 104 S.Ct. 3540, 82 L.Ed.2d 844 (1984), we held that the defendant bears the burden of showing a fair and just reason for withdrawal of a guilty plea, and that the defendant has no "right" to withdraw his plea. We believe these holdings preclude adoption of Rios-Ortiz's position which would, in effect, eliminate the defendant's burden of showing a fair and just reason and substitute a right to withdraw the plea absent prejudice to the government.

Other circuits have more squarely considered, and rejected, a construction of Rule 32(d) like that appellant urges. The Second Circuit has expressly stated that the defendant's "change of heart" is insufficient as a "fair and just reason." United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840, 106 S.Ct. 122, 88 L.Ed.2d 100 (1985); United States v. Michaelson, 552 F.2d 472, 476 (2d Cir.1977). At least two circuits have specifically rejected the notion that any desire to withdraw a plea is "fair and just" if the government cannot show prejudice, concluding instead that an inquiry into government prejudice is unnecessary until the defendant establishes valid grounds for withdrawal. United States v. Thompson, 680 F.2d 1145, 1150 (7th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Saft, 558 F.2d 1073, 1083 (2d Cir.1977); see also Fed.R.Crim.P. 32(d), Notes of Advisory Committee, 1983 Amend. Commentators have pronounced this "the sounder and prevailing view." LaFave and Israel, Criminal Procedure Sec. 20.5 (1985).

Consistent with that view, this court has repeatedly held that the decision to permit or deny withdrawal of a guilty plea is within the district court's sound discretion. United States v. Del Valle-Rojas, 463 F.2d 228, 229 (9th Cir.1972); United States v Fragoso-Gastellum, 456 F.2d 1287, 1287 (9th Cir.), cert. denied, 406 U.S. 970, 92 S.Ct. 2427, 32 L.Ed.2d 669 (1972). Accordingly, this court has not overturned a denial of a motion to withdraw a guilty plea absent something more than the defendant's change of mind. Cf., Kadwell v. United States, 315 F.2d 667 (9th Cir.1963) (refusal to permit withdrawal of plea reversed where district court did not inform defendant of nature of accusation or consequences of plea; defendant was faced with serious charge, was far from home, and had only brief consultation with counsel appointed at time of arraignment). Appellant's proposed interpretation of Rule 32(d) would require us to hold as a matter of law that courts must permit withdrawal prior to sentencing absent bad faith or prejudice to the government. It is thus inconsistent with the broad discretion this court has accorded to district court determinations.

Appellant cites to us cases from other circuits where denials of Rule 32(d) motions were reversed, but these cases all involved factors in addition to a...