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 *809constitutes 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 presentenc-ing 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 were 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 Rubalcaba’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.

Faced with this precedence, the majority first contends that Rubalcaba’s application of the Hill standard is not binding, because, here, “the fact that defendant’s counsel affirmatively misrepresented the possible sentence that defendant might receive distinguishes Rubalcaba. ...” The majority holds that “the Hill standard [only] applies when a defendant seeks to invalidate a plea post-sentence.” These statements are contradictory, and, I submit, incorrect.

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, 915 (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 Kozin-ski, 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 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 disagree on 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 erroneous advice, he would have insisted on going to trial.” Nothing in the majority’s opinion supports our disturbing the district court’s factual determination.

The majority, however, holds that “[although the district court may have correctly determined that defendant had not established actual prejudice sufficient to invalidate his plea, a defendant does not have to prove that his plea is invalid in order to establish a fair and just reason for withdrawal before sentencing.” This is troubling for several reasons. First, even if this were an accurate statement of the law as permissive (“may”), it does not fol*810low that such erroneous advice from defendant’s attorney commands the vacation of the sentence.2

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 eviden-tiary 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. The district court found that there was no showing, as Davis contended, that Davis’s attorney “lured” him into pleading guilty, only that the attorney failed to properly advise him that he was unlikely to receive probation.

Normally, the factual determination by the district court 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. As indicated, this statement is wrong on the facts and wrong as a matter of law. The district court in essence disbelieved the defendant; discretion played no role in its denial of the motion.

Furthermore, the majority errs in suggesting that an inquiry as to what constitutes “fair and just reason” for a plea may not consider the plea’s validity. The precedents 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, 884 (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 1008, 1011 (9th Cir.2005) turns on whether a plea is invalid. Neither held that a district court could not consider the validity of a plea as a factor in determining what constitutes a “fair and just reason” for withdrawal of a plea. Furthermore, both cases involved changed circumstances that were not known to the defendants at the time they entered into their plea agreements, and were instances where there was no procedure in place to counteract the prejudice of this lack of information.3

Here, although Davis may not have known of his attorney’s misadvice at the time that he initially entered the plea, the trial judge, as part of her standard trial procedure, 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 ad*811vising 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.” Rubalcaba, 811 F.2d at 494.

Once a trial judge has fully complied with the requirements governing entry of the 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, established by Signori and Rubalcaba, when it required Davis to show that he had been prejudiced by his attorney’s mischaracteri-zation of the sentence, I would affirm this portion of the district court’s decision.4

. The Hill standard has also been applied in the presentencing context in cases arising in other circuits. See, e.g., United States v. Pel-lerito, 878 F.2d 1535 (1st Cir.1989).

. Here, it is noteworthy that the presentenc-ing report was issued just days prior to Davis’s first statement to the district court that 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.”) Id. at 1211.

. 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 Part B (The Booker Claim).