FILED
NOT FOR PUBLICATION AUG 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50566
Plaintiff - Appellee, D.C. No. 2:07-cr-00713-DDP-1
v.
MEMORANDUM*
HAYEL ABDALLAH ALI JABER, AKA
Hayel A. Jaber, AKA Heyel Jaber, AKA
Hayel A. A. Jaber, AKA Tony Jaber, AKA
Hayel Jabar,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted July 16, 2010**
Pasadena, California
*
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).
Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.***
Defendant Hayel Jaber appeals the district court’s denial of his motion to
withdraw his guilty plea and its entry of a judicial order of removal. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Jaber first argues that the district court applied an incorrect legal standard in
ruling on his motion to withdraw, or alternatively, that the court abused its
discretion in its application of the correct standard. The record demonstrates the
contrary. The district court explicitly cited Federal Rule of Criminal Procedure 11
and the “fair and just reason” line of cases. Following an evidentiary hearing, the
court found that Jaber’s attorney did indeed adequately investigate the case and
gave sufficient advice about both the possible defenses to deportation and the
criminal charges. The court thus found no fair and just reason to permit the guilty
plea to be withdrawn. The court also found that Jaber’s guilty plea was knowing
and voluntary, but it did not confuse the standard for the validity of a plea with the
standard for withdrawing a plea. The district court did not clearly err in any of its
factual findings or abuse its discretion in denying the motion to withdraw the plea.
***
The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
2
Secondly, Jaber argues that the district court did not have jurisdiction to
enter a judicial order of removal because the government furnished the district
court, without objection, only an unsigned copy of the concurrence of the Assistant
Secretary of Immigration and Customs Enforcement. We review de novo whether
the district court had jurisdiction. See United States v. Holler, 411 F.3d 1061, 1064
(9th Cir. 2005). Section 1228(c)(5) of Title 8 of the United States Code permits
the U.S. Attorney, with the concurrence of the Immigration Commissioner1, to
enter into a plea agreement calling for an order of judicial removal. However, the
statute does not require that the concurrence be in writing, much less that it be
signed or filed with the court. Cf. 8 U.S.C. § 1228(c)(2)(A) (“The United States
Attorney shall file with the United States district court . . . a notice of intent to
request judicial removal); 8 U.S.C. § 1228(c)(2)(B) (“[T]he United States Attorney
. . . shall file . . . a charge containing factual allegations regarding the alienage of
the defendant”). The unsigned concurrence and the government’s averment that it
had obtained a signed concurrence sufficiently establish ICE’s concurrence under
the statute. There was no objection to the form or content of the concurrence, or
1
Section 1101(a)(8) of Title 8 of the United States Code defines
“Commissioner” as “the Commissioner of Immigration and Naturalization.” On
March 1, 2003, the Immigration and Naturalization Service ceased to exist and its
functions were transferred to the Bureau of Immigration and Customs
Enforcement. Kawashima v. Holder, 593 F.3d 979, 982 n.2 (9th Cir. 2010).
3
any suggestion that the concurrence had not been obtained. The district court did
not lack jurisdiction to enter the judicial order of removal.
AFFIRMED.
4