F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 23 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.

 OLVIN ALFARO-BONILLA, also                            No. 00-1195
 known as Enrique Davila, also known            (D.C. No. 99-CR-185-1-D)
 as Edwin Javier Chicas, also known as                 (Colorado)
 Enrique Chivas, also known as
 Enrique Suarez-Davila, also known as
 Olpen Chicas-Alfaro, also known as
 Melvin Alfaro,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.


      Olvin Alfaro-Bonilla appeals his conviction and sentence for reentering the

United States following his removal by deportation in 1998. He asserts the

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
district court abused its discretion by refusing to allow him to withdraw his guilty

plea and erred in refusing to reduce his sentence by three levels for acceptance of

responsibility. 1 For the reasons stated below, we affirm.

      Rule 32(e) of the Federal Rules of Criminal Procedure allows the district

court to grant a defendant’s motion to withdraw his guilty plea if the motion is

filed before sentencing and the defendant can demonstrate “any fair and just

reason” why the motion should be granted. Fed.R.Crim.P. 32(e). The burden of

proof in making such a motion is squarely on the defendant. United States v.

Black, 

, 1299 (10th Cir. 2000). In assessing whether a defendant

has met this burden, a court must consider the following factors: “(1) whether the

defendant has asserted his innocence, (2) prejudice to the government, (3) delay

in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s

assistance of counsel, (6) whether the plea is knowing and voluntary, and (7)

waste of judicial resources.” United States v. Gordon, 

, 1572 (10th

Cir. 1993). The decision to allow withdrawal of a plea is solidly within the

province of the district court and we review that decision only for an abuse of



      1
        Mr. Alfaro-Bonilla informs us he wishes to preserve an unspecified
ineffectiveness of counsel claim “for proper presentation in a proceeding pursuant
to 28 U.S.C. § 2255.” Br. for Aplt. at 9. As we have previously held, any
ineffectiveness claim requiring the development of a record may only be brought
in a collateral proceeding. See United States v. Galloway, 

, 1240-41
(10th Cir. 1995) (en banc).

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discretion. 

(citing United States v. Wade, 

, 1377

(10th Cir. 1991)).

      Mr. Alfaro-Bonilla contends the district court should have permitted him to

withdraw his guilty plea because he believed he was pleading guilty to illegal

entry into the United States instead of illegal re-entry, and because he did not

receive a copy of the Spanish translation of the plea agreement until after he had

pled guilty. As to the first point, the district court stated expressly that it did not

believe Mr. Alfaro-Bonilla when he asserted the translator had mistranslated “re-

entry” as “entry” into the United States. “The Court finds Defendant is not

credible; he previously admitted to telling lies . . . . The charge was clearly read

to him, explained to him, and he confirmed his understanding of the charge

several times.” Rec., vol. I, doc. 48 at 3. The transcript of the motion hearing is

indeed replete with contradictions and inconsistencies asserted by Mr. Alfaro-

Bonilla.

      Mr. Alfaro-Bonilla’s contention that he was not timely provided with a

written translation of the plea agreement is belied by the record. The transcript of

the change-of-plea hearing indicates that Mr. Alfaro-Bonilla was in fact provided

with – and signed – a Spanish copy of the plea agreement at that hearing, and the

court specifically questioned Mr. Alfaro-Bonilla as to that copy.

      In any event, whether Mr. Alfaro-Bonilla misunderstood “re-entry” as


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“entry” is irrelevant in the context of the law under which he was indicted.

Although the title of 8 U.S.C. § 1326 is “Reentry of removed aliens,” the

language of the section is unambiguous:

      (a) In general
       Subject to subsection (b) of this section, any alien who--
       (1) has been denied admission, excluded, deported, or removed or has
      departed the United States while an order of exclusion, deportation, or
      removal is outstanding, and thereafter
       (2) enters, attempts to enter, or is at any time found in, the United States,
      unless (A) prior to his reembarkation at a place outside the United States or
      his application for admission from foreign contiguous territory, the
      Attorney General has expressly consented to such alien's reapplying for
      admission; or (B) with respect to an alien previously denied admission and
      removed, unless such alien shall establish that he was not required to obtain
      such advance consent under this chapter or any prior Act, shall be fined
      under Title 18, or imprisoned not more than 2 years, or both.

8 U.S.C. § 1326 (emphasis added). Mr. Alfaro-Bonilla has never disputed that he

“enter[ed], attempt[ed] to enter, or [was] at any time found in, the United States”

after having been previously deported. See Br. for Aplt. at 5 (“The parties agree

that the government’s evidence would show that . . . the Defendant was deported

to Mexico . . . pursuant to an immigration proceeding . . . [and that] the

Defendant was found in . . . Colorado, subsequent to the 1998 conviction and the

1998 deportation.”). Given that Mr. Alfaro-Bonilla does not contend he is

innocent of the crime with which he is charged, the district court did not abuse its

discretion in denying his motion to withdraw his guilty plea.

      Mr. Alfaro-Bonilla next contends the district court erred in refusing to


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grant him a three-level downward adjustment in his sentence for accepting

responsibility for the crime. We “‘give due deference to the district court’s

application of the guidelines to the facts’ while reviewing the application fully for

errors of law.” United States v. Dahlman, 

, 1398 (10th Cir. 1993)

(citations omitted); see also U.S.S.G. §3E1.1, cmt. 5 (“The sentencing judge is in

a unique position to evaluate a defendant’s acceptance of responsibility . . . [and]

is entitled to great deference on review”). “The issue of acceptance of

responsibility for purposes of downgrading the sentence under the Guidelines is a

question of fact,” and we will thus disturb a district court’s rulings in this regard

only if “clearly erroneous.” 

.

      On appeal, Mr. Alfaro-Bonilla argues only that he “at no time denied that

he was in the United States illegally.” Br. for Aplt. at 8. The district court found

no evidence that Mr. Alfaro-Bonilla accepted responsibility for his crime; indeed,

the court found the opposite. The court held that “no adjustment for acceptance

of responsibility [will be given] because of the defendant’s conduct subsequent to

the change of plea hearing.” Rec., vol. V at 24-25. That conduct included

“refusal to cooperate with [the] probation officer” and refusing “to acknowledge

those things that he willingly and voluntarily acknowledged previously on this

record.” 

find no clear error in the district court’s factual findings,

and we therefore affirm.


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The decision of the district court is AFFIRMED.

                              ENTERED FOR THE COURT


                              Stephanie K. Seymour
                              Chief Judge




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