FILED
NOT FOR PUBLICATION
FEB 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10014
Plaintiff-Appellee, D.C. No. 2:13-cr-00414-HDM-PAL-1
v.
MEMORANDUM*
DAMIEN WILLIAMS, AKA Goldie
Cage, AKA Christopher Williams,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted January 13, 2017**
San Francisco, California
Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.
Defendant Damien Williams appeals from his judgment after the district
court’s denial of his motion to withdraw his guilty plea. We have jurisdiction under
28 U.S.C. § 1291. We review the district court’s denial of Defendant’s 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 guilty plea for abuse of discretion, United States v. Yamashiro, 788
F.3d 1231, 1236 (9th Cir. 2015), and review “findings of fact supporting the
district court’s exercise of its discretion . . . for clear error.” United States v.
McTiernan, 546 F.3d 1160, 1166 (9th Cir. 2008). We affirm.
A defendant may withdraw a guilty plea before sentencing if “the defendant
can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). An attorney’s failure to predict accurately a defendant’s sentence will
not constitute a “fair and just reason for requesting the withdrawal” unless the
attorney “grossly mischaracterized” the possible sentence and the defendant
demonstrates that this “plausibly could have motivated his decision to plead
guilty.” United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005); see also United
States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010).
The district court did not clearly err in concluding that the sixty-four-month
difference between Defendant’s counsel’s predicted sentence of 111 months and
Defendant’s received sentence of 175 months did not rise to the level of a “gross
mischaracterization,” sufficient to constitute “a fair and just reason for requesting
the withdrawal” of Defendant’s plea. See Briggs, 623 F.3d at 729 (affirming the
denial of a defendant’s motion to withdraw his guilty plea when the defendant
expected a sentence of 200 months and received a sentence of 324 months); United
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States v. Garcia, 909 F.2d 1346, 1348–49 (9th Cir. 1990) (affirming the denial of a
defendant’s motion to withdraw his plea when the defendant expected a sentence
of eight years and received a sentence of over twenty years, reasoning, “it is well
established that an erroneous prediction by a defense attorney concerning
sentencing does not entitle a defendant to challenge his guilty plea.”). Defendant
was “aware that he faced a substantial term of incarceration,” Briggs, 623 F.3d at
729, and his ultimate sentence was still “well within . . . the statutory maximum.”
United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991). The district
court did not abuse its discretion in denying Defendant’s motion to withdraw his
guilty plea.
We decline to address Defendant’s ineffective assistance of counsel claim.
See United States v. McKenna, 327 F.3d 830, 854 (9th Cir. 2003) (“Claims of
ineffective assistance of counsel are generally inappropriate on direct appeal.”).
We are not persuaded by the additional arguments raised in Defendant’s pro
se supplement to counsel’s brief. Defendant’s sentence was not enhanced under the
residual clause of U.S.S.G § 4B1.2(a)(2), defeating his argument regarding the
applicability of Johnson v. United States, 135 S. Ct. 2551 (2015). His remaining
arguments also lack merit.
AFFIRMED.
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