United States v. Clifford A. Davis, M.D.

CALLAHAN, Circuit Judge,

dissenting in part.

I respectfully dissent from Part A of the majority’s opinion. The majority improperly faults the district court for applying established law from this circuit, and creates an unworkable standard for determining whether an attorney’s deficient advice constitutes a fair and just reason for the withdrawal of a guilty plea.

In my view, we are bound by the standard set forth in Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), as previously applied to presen-tence cases in United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988) and United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.1987). Thus, even if this panel *1129were to set forth a new standard, the district court could hardly be criticized for following established case law.1

In Rubalcaba, the defendant filed a motion to withdraw his guilty plea to conspiracy to possess and distribute heroin and possession of a firearm. One of the defendant’s grounds for withdrawing the plea was that he misunderstood the plea agreement because he was denied effective assistance of counsel. The court applied the standard from Hill and held that “[e]ven if Rubaleaba’s attorney acted incompetently by misinforming him of the nature of the plea bargain, Rubalcaba has failed to show this act prejudiced him.” Id. This statement is equally applicable to our situation.

The majority, however, contends that Rubaleaba’s application of the Hill standard is not binding because the opinion does not analyze whether applying Hill in the presentence context “violates the distinction Rule 11 makes between presentence motions to withdraw and post-sentence challenges to pleas.”2 This statement is nothing more than a synopsis of the majority’s rationale for disagreeing with the application of the Hill standard in Rubalcaba.

The fact that a prior panel may not have considered a particular argument, or line of thought, in reaching its bottom line does not provide a valid basis for distinguishing otherwise controlling precedent. Indeed, such a posture would invite subsequent panels to distinguish precedent based solely on the fact that prior panels had not specifically considered a novel argument. Our jurisprudence is not, however, a perpetual tabula rasa. See United States v. Johnson, 256 F.3d 895, 916 (9th Cir.2001) (“If later panels could dismiss the work product of earlier panels quite so easily, much of our circuit law would be put in doubt.”)(en banc)(plurality op. of Kozinski, J.); see also Barapind v. Enomoto, 400 F.3d 744, (9th Cir.2005) (en banc) (noting that if the majority of a panel chooses to an address an issue, the court’s disposition of that issue becomes law of the circuit).

In addition, the majority’s holding establishes an unworkable standard. We agree that Davis must show a “fair and just reason” for withdrawal of his guilty plea, but part company as to what showing a defendant has to make to meet this standard.' The district court found that Davis had not met his burden of offering a fair and just reason because — to use the majority’s phrase — he had not shown “that but for his counsel’s deficient performance he would not have pled guilty.” Nothing in the majority’s opinion supports our disturbing the district court’s determination.

The majority, however, holds that “a defense counsel’s erroneous advice may constitute a fair and just reason for withdrawing a plea even if the defendant does not prove that he would not have pled guilty but for the erroneous advice.” This is troubling for several reasons. First, even i/'this were an accurate statement of the law as permissive (“may”), it does not follow that such erroneous advice commands the vacation of the sentence. Following the majority’s approach, a competent criminal defense counsel may misadvise his client as to some relevant aspect of the case when entering into the plea agreement, in order to preserve the option of subsequently moving to withdraw the plea if the presentencing report indicates that sentencing is likely to be less favorable than anticipated.3

*1130. Furthermore, in applying its standard to the facts of this case, the majority fails to appreciate the district court’s view of the facts. The district judge held an evidentiary hearing on defendant’s motion to withdraw. She heard testimony from both the defendant and his prior counsel, who denied having promised the defendant that he would receive probation if he pled guilty. The district court then made the factual determination that even accepting that counsel “grossly mischaracterized the likely outcome of the case and rendered deficient performance,” the defendant had not shown that he would have withdrawn his guilty plea.

Normally, such a factual determination is subject to reversal on appeal only if it constituted clear error. The majority, unwilling to so hold, posits that the district court failed to understand that it had “discretion to permit defendant to withdraw his plea” even if the defendant did not prove actual prejudice. This statement is wrong on the facts and wrong as a matter of law. As the district court in essence disbelieved the defendant, discretion played no role in its denial of the motion.

Furthermore, the majority errs in holding that an inquiry as to what constitutes “fair and just reason” for a plea withdrawal must always be divorced from the plea’s validity. The precedent relied upon by the majority are.compatible with requiring the defendant to show that but for the deficient performance, he would have withdrawn his guilty plea. In United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004), we held that a defendant did not have to show that a “plea was invalid.” Similarly, United States v. Garcia, 401 F.3d at 1011 (9th Cir.2005) turns on whether a plea is invalid. Both cases, however, involved changed circumstances that were not known to the defendants at the time they entered into their plea agreements, and where there was no procedure in place to counteract the prejudice of this lack of information.4

This case is different. Although Davis may not have known of an attorney’s misadvice at the time that he entered the plea, as part of her standard trial procedure, the trial judge informed Davis of the full consequences of his plea during the plea colloquy. Thus, the district court had the opportunity to dispel the prejudice of the defense counsel’s mistaken advice by advising Davis of the full consequences of entering his plea.

Indeed, Davis’s counsel conceded that the colloquy itself is unassailable. During the colloquy, Davis stated in open court that he was informed that he could face a potential sentence of over eight years in prison. Davis also denied that he was pleading guilty based on promises not reflected in the plea agreement. A defendant’s “solemn declarations in open court carry a strong presumption of verity.” United States v. Rubalcaba, 811 F.2d at 494.

Once a trial judge has fully complied with the requirements governing entry of *1131the guilty plea, the result should be more than ephemeral.” United States v. Rios-Ortiz, 830 F.2d 1067, 1070 (9th Cir.1987). Where, as here, a plea colloquy was thorough and comprehensive, a district court cannot be said to abuse its discretion when, following an evidentiary hearing, it concludes that a defendant was not actually prejudiced by relying on his attorney’s wrong advice.

As the district court correctly applied the prevailing law of this circuit when it required Davis to show that he had been prejudiced by his attorney’s mischaracterization of the sentence, I would affirm this portion of the district court’s decision.5

. The majority also attempts to distinguish Rubalcaba and Signori on the grounds that neither case involved a finding by the district court that counsel had rendered defective advice.

.Here, it is noteworthy that the presentencing report was issued just days prior to Davis's first statement to the district court *1130that he wished to withdraw his guilty plea. See United States v. Nostratis, 321 F.3d 1206 (9th Cir.2003) (noting that "[i]n the instant case, Nostratis moved to withdraw his plea only after learning from, the presentence report that his likely sentencing range was 135 to 168 months and that the government would only move for a two-level downward departure.”) (emphasis added). Although the court also considered Nostratis's two-year delay to be a factor in denying his withdrawal motion, it also noted that courts have rejected plea-change motions where the timing is much shorter.

. Ortega-Ascanio involved a defendant who was arguing changed circumstances based on an intervening change in the law. Garcia involved a defendant who claimed that he would not have pled guilty if he had known of evidence that was discovered after the time the plea was submitted.

. I agree with the majority, however, as to PartB.