ORDER
DAVID G. CAMPBELL, District Judge.
At his sentencing hearing on August 14, 2013, Defendant Ysidro Valdez asked to withdraw his guilty plea to a charge of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Defendant signed the plea agreement more than one year ago, on July 10, 2012, and the Court accepted it on August 13, 2012. Doc. 74. The Court took Defendant's request under advisement to determine whether Defendant had shown a fair and just reason to withdraw his plea as required by Federal Rule of Criminal Procedure 11(d)(2). For the reasons that follow, the Court finds that Defendant has not met this standard and will deny Defendant's request to withdraw his plea. The Court will reset sentencing for September 9, 2013 at 1:30 p.m.
I. Background.
Defendant was indicted on December 27, 2011, on one count of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 846, and one count of knowingly or intentionally possessing with intent to distribute and aiding and abetting the distribution of 50 grams or more of methamphetamine, id. at § 841(a)(1) & (b)(1)(A)(viii). Doc. 20.
The charges arose from a Drug Enforcement Administration ("DEA") undercover operation conducted on December 7, 2011. As recounted and admitted in Defendant's plea agreement, an undercover officer arranged to purchase a pound of methamphetamine from Jesus Adrian Atondo and his father, Guillermo Atondo-Castaneda. Doc. 67 at 6. Guillermo Atondo-Castaneda met the undercover officer at a Target store and said his daughter was en route to deliver the methamphetamine. Id. at 6-7. Defendant arrived at the Target store driving a 2001 Nissan Pathfinder in which his girlfriend, Claudia Atondo (Atondo-Castaneda's daughter), was a passenger. Id. at 7. Atondo-Castaneda pointed to the Nissan, and the undercover officer walked to the car where Defendant and Claudia Antondo showed him a quantity of suspected methamphetamine. Id. Law enforcement officers arrested Atondo-Castaneda, Claudia Atondo, and Defendant at the scene, and seized 464 grams of methamphetamine. Id.
On January 27, 2012, Defendant participated in a free talk with prosecutors, during which he apparently told them of his and the others' involvement in the case. As documented in the pre-sentence report, Defendant told prosecutors that when the undercover officer approached his vehicle he motioned to a cooler on the floor between Claudia Atondo's feet, and she opened the cooler to show the methamphetamine.
On July 10, 2012, Defendant signed a plea agreement in which he agreed to plead guilty to Count 1 of the indictment and the government agreed to dismiss Count 2. Doc. 67. Defendant appeared the same day before Magistrate Judge Steven P. Logan to change his plea. He was represented by his court-appointed attorney, David Lockhart. During questioning before Judge Logan, both Mr. Lockhart and Defendant confirmed that Defendant had reviewed and understood all the terms of the plea agreement.
The plea agreement is very favorable to Defendant. The government agrees to recommend that Defendant receive a two-level minor role adjustment and a three-level adjustment for acceptance of responsibility, and that his sentence run concurrently with a 14-year sentence he is now serving in state prison for sexual assault. Doc. 67. The government has also requested that Defendant receive a three-level downward departure under Guidelines section 5K1.1 for cooperation provided during his free talk. The result of these adjustments and departures would be a sentencing guideline range of 57 to 71 months, with the government recommending 57 months to be served concurrently with Defendant's state term. Defendant would face no additional time in custody as a result of such a sentence.
The Court reviewed these very favorable terms with Defendant at the sentencing hearing, and Defendant confirmed that he understood them. The Court explained that if Defendant withdraws his plea he would go to trial and, if he prevails, would still serve the remainder of his 14-year state sentence. If found guilty, he would face a mandatory minimum sentence of ten years, which could be in addition to, rather than concurrent with, his state sentence. Defendant's current attorney, Neil LaBarge, stated for the record that he had advised Defendant that admissions made in his free talk and elsewhere would make it very difficult for him to convince a jury of his innocence at trial.1
Defendant states that he nonetheless wants to withdraw his guilty plea because his previous counsel, Mr. Lockhart, gave him an erroneous definition of conspiracy. He states that Mr. Lockhart led him to believe that his mere presence in the car was enough to show conspiracy, but that Defendant later learned through his own study that conspiracy requires an agreement of two or more minds to carry out a scheme. He asserts that he tried to drive away and remove himself from the conspiracy in this case, and that if he had known the car contained methamphetamine he would not have been in it. He wants to go to trial to contend for his innocence.
II. Legal Standard.
"It is well-established that a defendant has no right to withdraw his guilty plea, and that a withdrawal motion is committed to the sound discretion of the district court." United States v. Signoria, 844 F.2d 635, 637 (9th Cir. 1988) (citing United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985), cert. denied, 479 U.S. 835 (1986); United States v. Castello, 724 F.2d 813, 814 (9th Cir. 1984), cert. denied, 467 U.S. 1254 (1984); United States v. King, 618 F.2d 550, 551 (9th Cir. 1980)). To withdraw a guilty plea that has been accepted by the court, a defendant must show "a fair and just reason." Fed. R. Crim. P. 11(d)(2)(B). "The `fair and just reason' standard . . . is generous and must be applied liberally." United States v. Bonillo, 637 F.3d 980, 983 (9th Cir. 2011); see also United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009); United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008). A defendant may not, however, withdraw his guilty plea "simply on a lark." United States v. Hyde, 520 U.S. 670, 676 (1997). "Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). "Erroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal." McTiernan, 546 F.3d at 1167. Where a defendant seeks to withdraw a plea for this reason, he must show that proper advice "could have at least plausibly motivated a reasonable person in [his] position not to have pled guilty." United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005).
III. Discussion.
A. Improper Legal Advice.
Defendant's assertion that his former attorney gave him erroneous legal advice regarding the proof required for conspiracy is not, in this case, a "fair and just reason" to withdraw from the guilty plea. Even if his attorney had at some point led Defendant to believe that his mere presence in the vehicle with the drugs was enough to show he had entered into a conspiracy, the record in this case shows that Defendant was advised of and admitted the correct elements of conspiracy before he changed his plea.
The plea agreement contains a correct definition of conspiracy: "an agreement between defendant and one or more other persons to knowingly and intentionally possess with the intent to distribute methamphetamine, a controlled substance." Doc. 67 at 6. Defendant confirms in the factual basis of the plea agreement that he entered into such an accord, admitting that he "agreed with Jesus Adrian Atondo, Guillermo Atondo-Castandena and Claudia Atondo to knowingly and intentionally possess with the intent to distribute 50 grams or more of actual methamphetamine." Id. (emphasis added) (internal parenthesis omitted).
The Court has reviewed the audio recording of Defendant's plea hearing before Judge Logan. Defendant was thoroughly informed by his attorney and Judge Logan of everything in the plea agreement, including the correct definition of conspiracy. Mr. Lockhart stated that he reviewed an initial version of the plea agreement with Defendant "line by line" and "paragraph by paragraph," and subsequently sent Defendant a revised agreement with all revisions noted. Mr. Lockhart reviewed the revised agreement with Defendant before the change of plea hearing, and Defendant indicated that he understood it. Defendant, who speaks excellent English and needed no interpreter in the plea hearing, agreed with Mr. Lockhart's account of events and confirmed that he understood everything contained in his plea.
Judge Logan also explained the elements of conspiracy in open court as required before accepting a plea. See, e.g. United States v. Longoria, 113 F.3d 975, 977 (9th Cir. 1997) (explaining that Rule 11 requires informing defendant of the nature of the charge against him, not just its formal legal description); United States v. Portillo-Cano, 192 F.3d 1246, 1251 (9th Cir. 1999) (same). Judge Logan explained that the government must prove (1) an agreement between Defendant and one or more persons to possess methamphetamine with intent to distribute, (2) that Defendant became a member of the conspiracy, and (3) that the substance was actually methamphetamine. Defendant confirmed that he understood these elements of proof.
Judge Logan then asked the prosecutor to explain the factual basis for the guilty plea, and even asked the prosecutor to explain Defendant's role in the actual transaction. The prosecutor stated that Defendant drove the car containing his girlfriend and the methamphetamine to the transaction, and that he responded when the undercover officer approached the car and asked if the drugs were good by saying "it is all good." Ms. Atondo then opened the cooler and showed the undercover officer the drugs, and Defendant parked the car at the direction of the officer so the transaction could be completed. Defendant and the others were then arrested. When asked if these facts were "all true," Defendant, who was under oath, said yes. When asked if he had anything to add, Defendant said no.
After reviewing the recording of the plea colloquy, the Court is fully satisfied that Defendant was informed of and admitted the accurate elements of conspiracy before he pled guilty. The Court therefore concludes that the advice of his former counsel does not provide a fair and just reason to withdraw from the plea. See Sherman v. United States, 383 F.2d 837, 840 (9th Cir. 1967) (finding the district court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea where his claim of lack of knowledge of the charges against him was fully explored by the court at the time the plea was entered.). Defendant has failed to present a reason for withdrawing from his plea that "did not exist when [he] entered his plea." Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004); see also United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009).
B. Actual Innocence.
Defendant suggested at the sentencing hearing that he is actually innocent. He states that he tried to withdraw from the conspiracy and would not have been in the car had he known of the drugs. Defendant's factual admissions in the plea agreement and plea colloquy, and apparently in his free talk with prosecutors, tell a different story. Defendant admitted that Atondo-Castandena pointed to his Nissan when he drove into the Target parking lot with Atondo-Castandena's daughter. Defendant admitted that he motioned to the cooler containing methamphetamine when the undercover officer approached the car. Defendant told the undercover officer that "it's all good" and then followed directions to park the car to complete the transaction. When Judge Logan asked if these facts were all true, Defendant said yes. In light of these admissions and the possibility that the government could use Defendant's prior statements to impeach him should he attempt to offer a different account at trial, the Court finds that Defendant's assertions of actual innocence do not provide a fair and just reason to withdraw his plea.
C. Additional Factors.
Two additional factors weigh against finding a fair and just reason for Defendant to withdraw his guilty plea. The first is delay. Defendant pled guilty more than one year ago, and first asked the Court for permission to withdraw from his plea almost nine months later. Doc. 144. The second reason is Defendant's very favorable plea agreement. Under recommendations made by the government, which the Court is inclined to accept, Defendant will be sentenced to 57 months in a case where he otherwise faces a 120-month mandatory minimum sentence. Defendant is not safety-valve eligible, and conviction at trial would therefore require a sentence of at least ten years. The recommended 57-month sentence would run concurrently with Defendant's 14-year state sentence, and he therefore would face no additional incarceration for this conviction. The Court has great difficulty concluding that it would be fair or just to permit Defendant to withdraw from this favorable plea, face almost certain conviction, and likely serve ten years or more of additional time in prison. The Court recognizes that such a decision is Defendant's, not the Court's, and that the Court would be required to permit withdrawal even from a favorable plea if Defendant had a valid basis. For reasons explained above, however, the Court concludes that Defendant has no valid basis for seeking to withdraw the guilty plea he made under oath with a clearly-explained and accurate definition of conspiracy.
IT IS ORDERED:
1. Defendant Ysidro Valdez's request to withdraw his guilty plea is denied.
2. Sentencing is rescheduled for September 9, 2013 at 1:30 p.m. Excludable delay pursuant to U.S.C. § 18:3161(h)(1)(D) is found to run from 8/14/2013.
