FILED
NOT FOR PUBLICATION JUN 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50078
Plaintiff - Appellee, D.C. No. 2:03-cr-00565-ABC-1
v.
MEMORANDUM *
TOMMY RAY ELAM,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted June 7, 2011
Pasadena, California
Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.**
The district court did not clearly err in determining that Elam’s reasons for
withdrawing his guilty plea were not credible, given Elam’s prior statements
during an extensive plea colloquy that he was competent to enter a guilty plea, that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
his plea was knowing and voluntary, and that he was guilty. The court-appointed
psychiatrist’s testimony that Elam was malingering in the weeks before he entered
that plea likewise supported the court’s conclusion. Therefore, the district court
did not abuse its discretion in denying Elam’s motion to withdraw his plea on the
ground that he had not offered a “fair and just reason” for so doing. Fed. R. Crim.
P. 11(d)(2)(B); United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009).
Further, our decision in United States v. Baptist, --- F.3d ----, 2011 WL 2150993
(9th Cir. June 2, 2011) (per curiam), forecloses Elam’s argument that the Fair
Sentencing Act of 2010 (FSA) applies retroactively to him.
For the first time at oral argument, Elam urged us to remand to the district
court to consider whether the FSA might itself constitute a “fair and just” reason
for withdrawing his guilty plea. Because we conclude that the district court did not
err in denying Elam’s withdrawal motion, there is no basis for such a remand.
Moreover, the enactment of non-retroactive legislation a year after the district court
imposed Elam’s sentence cannot logically constitute a “fair and just” reason for
withdrawing a guilty plea that he entered before that sentence was imposed.
AFFIRMED.
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