NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50454
Plaintiff-Appellee, D.C. No. 2:12-cr-00793-PA-1
v.
MEMORANDUM*
JORGE DOMINGUEZ, AKA Boxer,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted January 13, 2017**
Pasadena, California
Before: TROTT, McKEOWN, and WATFORD, Circuit Judges.
Pursuant to a negotiated plea agreement, Jorge Dominguez pleaded guilty to
one count of conspiracy to distribute methamphetamine, a crime carrying a
mandatory minimum sentence of ten years. Subsequently, he filed a motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
withdraw his plea on the grounds that (1) he believed according to his plea
agreement that the court would have discretion to impose a sentence lower than the
statutory ten-year minimum, (2) his plea was not knowing and intelligent and thus
not voluntary, and (3) his counsel’s performance was constitutionally deficient.
The district court conducted a thorough hearing on Dominguez’s claims and
denied them all. The court concluded that Dominguez had failed to establish a fair
and just basis to support his request. Based on (1) the language of his written plea
agreement, (2) his answers to the oral colloquy at the time of the plea, and (3) his
attorney’s sworn answers to interrogatories that he told his client before the plea
that “the law required the court to sentence him to no less than 10 years,” the court
determined that Dominguez understood full well that he faced a mandatory
minimum sentence of 10 years.
Dominguez appeals the court’s rulings, attacks the sufficiency of the court’s
Rule 11 colloquy, and presents us with a stand-alone claim of ineffective assistance
of counsel.
The record amply supports the court’s factual findings and denial of
Dominguez’s motion to withdraw his plea. As the court concluded, “He simply
wanted a better deal and, when confronted with witness tampering, decided to take
the government’s deal.” Also, we perceive no error in the Rule 11 exchange.
2
Ordinarily we leave claims of ineffective assistance of counsel to collateral
review. However, when the record on this issue has been sufficiently developed by
the district court, we have discretion to do so on direct appeal. United States v.
Davis, 36 F.3d 1424, 1433 (9th Cir. 1994). Because Dominguez’s issue of
representation rests on the same factual foundation as his attempt to withdraw his
plea, and the record on it is full and complete, we exercise our discretion to decide
it in this context.
On the merits, we agree with the district court’s findings: “The evidence
showed that prior counsel fully discussed with the defendant his case, his chances
of success, including his weak entrapment defense, and the evidence of the
informant’s conviction.” When the defendant’s attempt to tamper with witnesses
came to light, counsel’s options were severely degraded.
AFFIRMED.
3