FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50297
Plaintiff - Appellee, D.C. No. 3:10-cr-03044-WQH-5
v.
MEMORANDUM*
CARLOS COSME,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted December 11, 2014**
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
Appellant Carlos Cosme appeals the district court’s decision to deny his
motion to withdraw his guilty plea. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
Cosme argued before the district court he should be permitted to withdraw
his guilty plea because (1) he did not understand he was admitting to factual
allegations in the plea agreement that supported his convictions, (2) his attorney
pressured him into admitting those allegations and into entering a guilty plea, and
(3) there was no factual basis to support his convictions. The district court held an
evidentiary hearing and found Cosme’s testimony to be incredible and his factual
contentions to be without merit.
We review a denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005). “A
defendant may withdraw a guilty plea after its acceptance but before sentencing if
the defendant shows ‘a fair and just reason for requesting the withdrawal.’” Id.
(quoting Fed. R. Crim. P. 11(d)(2)(B)). The district court found there was no
factual basis for any of Cosme’s proffered “fair and just” reasons for withdrawing
his guilty plea. And the district court’s factual findings were not “illogical,
implausible, or without support in inferences that may be drawn from the facts in
the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc). Therefore, the district court did not abuse its discretion in denying Cosme’s
motion.
2
Moreover, Cosme’s plea agreement has a waiver of appellate rights. “A
defendant’s waiver of his appellate rights is enforceable if (1) the language of the
waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is
knowingly and voluntarily made.” United States v. Rahman, 642 F.3d 1257, 1259
(9th Cir. 2011) (quoting United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.
2005)). We review “de novo whether a criminal defendant waived his right to
appeal.” United States v. Spear, 753 F.3d 964, 967 (9th Cir. 2014). But we review
the “district court’s findings for clear error.” United States v. Kaczynski, 239 F.3d
1108, 1114 (9th Cir. 2001).
Cosme’s waiver is enforceable under Rahman’s two-part test. First, the
waiver encompasses Cosme’s right to appeal the district court’s order, as Cosme
agreed to waive “to the full extent of the law, any right to appeal or to collaterally
attack the conviction and any lawful restitution order.” See Rahman, 642 F.3d at
1259. Second, Cosme argues his waiver was involuntary for substantially the same
reasons he asked to withdraw his guilty plea, and the district court’s findings that
those reasons had no factual basis were not clear error. Cosme therefore
knowingly and voluntarily waived his right to appeal the district court’s order.
DISMISSED.
3