FILED
NOT FOR PUBLICATION MAY 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30070
Plaintiff - Appellee, D.C. No. 2:12-cr-00144-RAJ-1
v.
MEMORANDUM*
ALEXANDER KOSNICKI,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted May 16, 2014**
Seattle, Washington
Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.
Alexander Kosnicki appeals the district court’s denial of his motion to
withdraw his guilty plea. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
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).
The district court did not abuse its discretion in determining that Kosnicki
failed to demonstrate a “fair and just reason” for withdrawal of his guilty plea. See
Fed. R. Crim. P. 11(d)(2)(B); United States v. Mayweather, 634 F.3d 498, 504 (9th
Cir. 2010). Kosnicki knew of the alleged threats by the confidential informant
before his guilty plea, even if he did not know of the recordings, and he does not
explain how development of such threats could have made any particular defense
plausible. He also does not explain whether he informed counsel of the threats
before his plea. Further, the existence of recordings was disclosed in discovery,
and the recordings did not provide evidence that the confidential informant made
threats.
We decline to review Kosnicki’s ineffective assistance of counsel claim on
direct appeal. This is not one of the “unusual cases where (1) the record on appeal
is sufficiently developed to permit determination of the issue, or (2) the legal
representation is so inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel.” See United States v. Rahman, 642 F.3d 1257,
1259–60 (9th Cir. 2011). We therefore leave open the possibility that Kosnicki
might raise an ineffective assistance of counsel claim in collateral proceedings.
See id. at 1260.
AFFIRMED.