FILED
NOT FOR PUBLICATION MAR 30 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10110
Plaintiff - Appellee, D.C. No. 1:10-cr-00285-LJO-2
v.
MEMORANDUM*
JOSEPH CUELLAR,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neil, District Judge, Presiding
Argued and Submitted March 14, 2016
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,** District Judge.
Joseph Cuellar pled guilty to knowingly violating the asbestos work-practice
standards of the National Emissions Standards for Hazardous Air Pollutants by failing
to dispose of asbestos-containing material at an authorized waste disposal site or
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
recycling facility. See 42 U.S.C. §§ 7412, 7413(c). Pursuant to a plea agreement, he
was sentenced to twenty-seven months in prison. Prior to the imposition of sentence,
Cuellar moved unsuccessfully to withdraw his guilty plea. Cuellar appeals from the
order denying his motion. He also raises for the first time the claim that he was
denied the effective assistance of counsel.
I.
When a court has accepted a guilty plea, but not yet imposed a sentence, it has
discretion to permit the defendant to withdraw his guilty plea for a fair and just reason.
Fed. R. Crim. P. 11(d)(2)(B). The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion, with a clear-error standard applied to
the factual findings. United States v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015).
Cuellar offered two reasons for moving to withdraw his plea.
First, he argues that he suffered from short-term memory loss and Alzheimer’s
disease, which led him to plead guilty despite being innocent. After conducting an
evidentiary hearing, the district court found that Cuellar did not suffer from
Alzheimer’s disease or any memory loss that prevented him from understanding the
nature of the plea. The district court based this finding on the testimony of the
psychologist who had conducted the most extensive examination of Cuellar, and it
was not clearly erroneous. Indeed, the district judge observed that Cuellar had waited
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a year before moving to withdraw his plea and did so only after a sentencing hearing
where the judge indicated his reluctance to accept a plea agreement that would require
any term of imprisonment.
Second, Cuellar argues that the district court made several errors during the plea
colloquy that we hold are harmless. See Fed. R. Crim. P. 11(h). A defect in a plea
colloquy is harmless if it “does not affect [a defendant’s] substantial rights.” Id. A
defendant’s actual knowledge of a fact of which he was not specifically advised by a
district judge is a “critical consideration.” United States v. Littlejohn, 224 F.3d 960,
969 (9th Cir. 2000).
While the district judge could have more fully explained the elements of the
crime to which Cuellar pled guilty, Cuellar had read a draft and final copy of the
agreement, discussed the agreement on several occasions with his counsel, and
answered affirmatively at the colloquy that he understood the elements of the crime.
Moreover, the district judge specifically elicited from Cuellar his acknowledgment
that the facts contained in Exhibit A of the plea agreement that established a “factual
basis” for the plea were true. Finally, even though the district judge failed to mention
that an order of restitution was mandatory, the plea agreement stated that the
“[d]efendant agrees to pay restitution in an amount to be determined by the Court.”
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Indeed at the evidentiary hearing, Cuellar acknowledged that counsel had previously
told him that the court would order restitution.
II.
Cuellar next alleges that his trial counsel provided ineffective assistance. While
ineffective-assistance-of-counsel claims are generally resolved through a proceeding
pursuant to 28 U.S.C. § 2255, testimony at the evidentiary hearing on Cuellar’s
motion to withdraw his guilty plea provides a sufficient record to rule on this issue.
See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Indeed, both
parties agree that the factual findings that the district court made are sufficient to
resolve this claim without a remand for additional findings of fact.
Cuellar’s claim of ineffective assistance of counsel is based on three separate
grounds. First, he argues that counsel failed to investigate his competency to plead.
Nevertheless as discussed above, after conducting a full evidentiary hearing, the
district judge found that Cuellar did not suffer from any mental impairments that
prevented him from pleading knowingly and intelligently.
Second, Cuellar argues that his counsel inadequately explained the terms of the
agreement. Specifically, he claims that counsel did not explain the elements of the
crime to which he pled guilty and that he was not advised of the amount of restitution
he would be required to pay. The record shows that counsel had represented Cuellar
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for four years, and they had regularly discussed entering into the plea agreement.
While Cuellar alleges that he was handed a final copy of the plea to review at a lunch
meeting just before the plea colloquy, he had previously received a draft of the plea
agreement, and counsel answered his questions about the final version at lunch.
Indeed during the colloquy, Cuellar acknowledged that he understood the elements of
the crime to which he was pleading and the facts upon which they were based.
Moreover prior to the plea, neither counsel nor the court were required to inform
Cuellar of the exact amount of restitution because “the amount . . . to be ordered will
be ascertained later in the sentencing process.” Fed R. Crim. P. 11(c)(1), advisory
committee’s note to 1985 amendment.
Third, Cuellar alleges that his counsel advised him to plead guilty even though
he denied several factual allegations contained in the plea agreement. A defendant
who maintains his innocence may nonetheless choose to plead guilty to avoid being
convicted at trial and facing a harsher sentence. See Brady v. United States, 397 U.S.
742, 751 (1970). Exhibit A of the plea agreement identified nine witnesses who
would have testified against Cuellar, documents that incriminated him, as well as
dates and places where Cuellar violated environmental laws. Indeed, one of the
witnesses named in Exhibit A testified at the evidentiary hearing. Moreover if
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convicted at trial, Cuellar could have received a forty-five month sentence. Instead,
the sentence he received was for twenty-seven months.
AFFIRMED.
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