FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 04-50030
                Plaintiff-Appellee,
               v.                               D.C. No.
                                             CR-00-1132-MMM
CLIFFORD A. DAVIS, M.D.,
                                                 OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
           for the Central District of California
       Margaret M. Morrow, District Judge, Presiding

                   Argued and Submitted
             March 7, 2005—Pasadena, California

                       Filed June 9, 2005

    Before: Susan P. Graber and Consuelo M. Callahan,
   Circuit Judges, and Charles R. Breyer,* District Judge.

              Opinion by District Judge Breyer;
              Partial Dissent By Judge Callahan




  *Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.

                               6753
6756                UNITED STATES v. DAVIS


                         COUNSEL

Randy S. Kravis, Studio City, California, for the defendant-
appellant.

Ronald L. Cheng, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.


                         OPINION

BREYER, District Judge:

   We must decide whether a district court has discretion to
permit a defendant to withdraw his guilty plea prior to sen-
tencing when the district court finds that defense counsel
“grossly mischaracterized” the defendant’s possible sentence,
but also finds that the mischaracterization did not actually
prejudice the defendant as is required to invalidate a plea
post-sentence. We answer “yes.” Because the district court
did not believe it had such discretion, we vacate and remand
for reconsideration of defendant’s motion to withdraw his
plea.

   FACTUAL AND PROCEDURAL BACKGROUND

  A grand jury indicted defendant, a physician, for conspir-
acy to distribute Dilaudid, a Schedule II controlled substance,
and for twelve separate distribution counts. After several con-
                     UNITED STATES v. DAVIS                  6757
tinuances, trial was scheduled for October 23, 2001. Just
before trial, defendant, then aged 72, pled guilty pursuant to
a plea agreement to a second superseding information charg-
ing defendant with two counts of violating 21 U.S.C.
§ 843(b), using a telephone to facilitate a conspiracy to dis-
tribute illegal narcotics by means of false and fraudulent drug
prescriptions. The plea agreement unambiguously stated that
defendant’s potential maximum sentence was eight years.
During the extensive Rule 11 plea colloquy, the government,
at the district court’s request, again stated that the defendant
faced a maximum sentence of eight years, and further empha-
sized that the government might seek an offense level which
would place defendant’s guideline range well in excess of the
eight-year statutory maximum.

   In February 2002, the United States Probation Office issued
a Presentence Report (“PSR”) in which it recommended that
the court sentence defendant to the statutory maximum of
eight years’ imprisonment. Although defendant had stipulated
to illegally issuing only 16 prescriptions for Dilaudid, the
PSR calculated defendant’s offense level based on defendant
having illegally issued additional prescriptions. Defendant
subsequently filed a motion for new counsel (defendant’s
retained counsel had become appointed counsel around the
time of defendant’s plea).

   The district court held a hearing on defendant’s request.
During the in camera portion of the hearing, defendant
explained that he wanted new counsel because, among other
reasons, he wanted to withdraw his plea, but his attorney was
not supportive of the idea. Defendant’s counsel stated on the
record that defendant’s decision to plead guilty was very diffi-
cult, and that defendant was uncertain as to what to do up to
the very last minute. After additional inquiry, the district court
determined that defendant could continue to communicate
with his counsel and therefore denied the request for substi-
tute counsel.
6758                UNITED STATES v. DAVIS
  Defendant nonetheless came up with the funds to hire new
counsel, and before he was sentenced, filed a motion to with-
draw his guilty plea. Defendant argued that his former counsel
had pressured him into entering the plea, and that his counsel
had rendered ineffective assistance of counsel by advising
defendant that he would receive probation if he pled guilty.

   The district court held an evidentiary hearing on defen-
dant’s motion. Defendant and defendant’s son testified in sup-
port of the motion to withdraw. Defendant’s son testified that
the weekend before defendant pled guilty, defendant told him
that he might have to plead guilty in order to avoid jail time.
The government called defendant’s former attorney as a wit-
ness. The former attorney denied having promised that defen-
dant would receive probation if he pled guilty, but he
admitted that he advised defendant that his potential sentenc-
ing range was probation to eight years.

   The district court subsequently issued a 27-page written
order denying defendant’s motion to withdraw his plea. After
acknowledging that the court could permit defendant to with-
draw his plea if he shows a “fair and just reason” for doing
so, the district court applied the two-part test for invalidating
a guilty plea based on ineffective assistance of counsel. See
Hill v. Lockhart, 

, 59 (1985). The court rejected
defendant’s assertion that his former attorney had absolutely
promised that he would receive probation, but nonetheless
found that counsel had rendered constitutionally deficient per-
formance when advising defendant on the entry of the guilty
plea:

       Because there was little, if any, likelihood that
    defendant might receive a probationary sentence in
    this case, and because mention of such a possibility
    significantly skewed the sentencing range [counsel]
    presented, . . . [counsel] grossly mischaracterized the
    likely outcome of the case and rendered deficient
                     UNITED STATES v. DAVIS                  6759
    performance in advising defendant regarding the
    entry of a guilty plea.

The court next concluded, however, that defendant had not
demonstrated actual prejudice; that is, he had not proved that
but for his counsel’s deficient performance he would not have
pled guilty. The court based this conclusion on the Rule 11
plea colloquy and, in particular, on the fact that defendant was
told, and stated that he understood, that he could be sentenced
to eight years in prison. For this reason the district court
denied defendant’s motion to withdraw his plea.

   At the subsequent sentencing hearing, the court adopted the
PSR’s findings. The court also found that defendant was
likely to die within the next five years because of a heart con-
dition, but declined to depart downward; instead, the court
sentenced defendant to the statutory maximum of eight years.

   Defendant appeals the district court’s denial of his motion
to withdraw his plea. He also argues that in the light of the
United States Supreme Court’s decision in United States v.
Booker, 543 U.S. __, 

(2005), his case should be
remanded to the district court for resentencing.

    JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction to review a district court’s denial of
a Rule 11 motion to withdraw a guilty plea pursuant to 28
U.S.C. § 1291. United States v. Nostratis, 

,
1207 (9th Cir. 2003). We review the district court’s denial of
such a motion for an abuse of discretion. United States v.
Ortega-Ascanio, 

, 883 (9th Cir. 2004). “A dis-
trict court abuses its discretion when it rests its decision on an
inaccurate view of the law.” United States v. Garcia, 

, 1011 (9th Cir. 2005).
6760                     UNITED STATES v. DAVIS
                             DISCUSSION

A.     The Motion To Withdraw The Plea

  [1] A district court may permit a defendant to 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).1 After a defendant is sentenced, however, a “plea
may be set aside only on direct appeal or collateral attack.”
Fed. R.Crim.P. 11(e).

   [2] The defendant has the burden of demonstrating a fair
and just reason for withdrawal of a plea, see Rule 11(d)(2)(B);
however, the standard is applied liberally. See 

; 

; United States
v. Nagra, 

, 880 (9th Cir. 1998); see also United
States v. Signori, 

, 637 (9th Cir. 1988) (stating
that a motion to withdraw a plea pre-sentence should be
“freely allowed”). “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.” 

(emphasis
added).

   Here, defendant proffered a reason for withdrawal that he
claimed did not exist at the time of his plea; namely, his belief
(based on his attorney’s advice) that if he pled guilty he
would receive probation. Arguably, he learned that there was
virtually no chance that he would receive probation when he
received the PSR. The district court found that counsel had
  1
    This Rule was found in Federal Rules of Criminal Procedure 32(e) at
the time the district court decided defendant’s motion to withdraw his
plea. After the December 2002 amendments to the Rules, the withdrawal
Rule was moved to Rule 11(d)(2)(B). “Despite minor language changes in
the rule, the ‘fair and just reason’ standard remains the same . . . .” Nostra-

n.1. This Opinion refers to the Rule in its current
form.
                        UNITED STATES v. DAVIS                        6761
not promised that defendant would receive probation, but it
also found that counsel had “grossly mischaracterized” defen-
dant’s possible sentence and had rendered deficient perfor-
mance by advising defendant that his likely sentence was
probation to eight years. See Chacon v. Wood, 

,
1464 (9th Cir. 1994) (noting that a defendant can prove that
his counsel engaged in constitutionally deficient performance
by showing that counsel grossly mischaracterized the likely
outcome) (citing Iaea v. Sunn, 

, 865 (9th Cir.
1986))), superceded by statute on other grounds as stated in
Morris v. Woodford, 

, 779 (9th Cir. 2000). Under
the Sentencing Guidelines there was little, if any, possibility
that defendant would be sentenced to probation or anything
close to probation.2 Again, defendant arguably did not learn
of his attorney’s gross mischaracterization until he received
the PSR.

   The district court nonetheless denied defendant’s motion
because defendant did not prove actual prejudice as required
by 

. In Hill, the United States Supreme
Court held that a defendant may successfully attack the valid-
ity of a guilty plea based on ineffective assistance of counsel
if the defendant shows “that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” 

The court concluded that defendant had not met this burden
because, during the Rule 11 colloquy, the court properly
advised defendant that he could be sentenced to a maximum
of eight years’ imprisonment, precisely the sentence he
received. Defendant’s acknowledgment of this fact during the
colloquy was, the district court concluded, inconsistent with
his assertion that he believed he would receive probation.
  2
     The district court found that, in order for defendant to receive a sen-
tence at the low end of the range suggested by counsel, the court would
have had to depart 20 to 30 levels. The court further found that there was
little likelihood that the limited grounds for departure reserved by defen-
dant in the plea agreement would warrant such an extreme departure.
6762                     UNITED STATES v. DAVIS
   [3] Although the district court may have correctly deter-
mined that defendant had not established actual prejudice suf-
ficient 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. The invalidity standard applies
only after a defendant has been sentenced. See Fed.R.Crim.P.
11(e); 

; 

. Prior to sentencing, the proper inquiry is whether the
defendant has shown a fair and just reason for withdrawing
his plea even if the plea is otherwise valid. See 

; 

.3

   In Ortega-Ascanio, for example, the defendant moved to
withdraw his plea prior to sentencing so that he could move
to dismiss the indictment based on a Supreme Court decision
issued after his plea. The district court ruled that the defen-
dant had not shown a fair and just reason for withdrawing his
  3
   Two of our previous decisions suggest that the post-sentence standard
for invalidating a plea applies to a defendant’s pre-sentence motion to
withdraw a plea based on counsel’s erroneous advice. United States v.
Signori, 

, 638 (9th Cir. 1988); United States v. Rubalcaba,

, 494 (9th Cir. 1987). Neither of those cases, however, ana-
lyzes whether requiring a defendant on a pre-sentence motion to withdraw
a plea to prove that his plea is invalid violates the distinction Rule 11
makes between pre-sentence motions to withdraw and post-sentence chal-
lenges to pleas.
   Moreover, neither case involves a finding by the district court that
defense counsel’s advice was constitutionally defective. 

(stating that “the district court could find as a fact that Signori had
not proven misrepresentation or misunderstanding”); 

(finding that the defendant was advised, at least implicitly, that his
sentence could run consecutively). Here, in contrast, defense counsel affir-
matively misrepresented to defendant that the likely sentencing range was
probation to eight years and the Rule 11 colloquy did not correct that mis-
representation. While defendant was unequivocally advised that he could
be sentenced to a maximum of eight years’ imprisonment, he was not
advised of the likely sentencing range, and more importantly, that he had
absolutely no chance of receiving probation or anything close to proba-
tion.
                     UNITED STATES v. DAVIS                   6763
plea because “ ‘a pre-plea constitutional violation . . . by itself
is insufficient to invalidate the properly entered guilty plea.’ ”

We reversed, holding that the district court had
applied the wrong legal standard to the defendant’s motion:
“namely, demonstration that the plea was invalid.” 

   [4] The district court applied the same incorrect legal stan-
dard here: requiring defendant to prove that his plea is invalid.
The court held that defense counsel’s constitutionally defi-
cient performance could constitute a fair and just reason for
withdrawing the plea only if defendant satisfied the prejudice
prong of Hill; that is, only if he proved that absent his coun-
sel’s erroneous advice he would have insisted on going to
trial. See 

. The Hill standard, however,
applies when a defendant seeks to invalidate a plea post-
sentence. To require a defendant to satisfy the prejudice prong
of Hill in order to withdraw a plea based on counsel’s errone-
ous advice eviscerates the distinction between a motion to
withdraw a plea made pre-sentence and a post-sentence chal-
lenge to a plea.

    Such an interpretation of ‘fair and just’ renders the
    rule nothing more than an expedited hearing on a
    challenge to the voluntariness of a plea. A fair read-
    ing of the broad language of Rule 11(d)(2)(B) . . .
    establishes that a defendant need not prove that his
    plea is invalid in order to meet his burden of estab-
    lishing a fair and just reason for withdrawal.

; see also 

(holding that the “ ‘fair and just reason’ standard is
simply more generous than the standard for determining
whether a plea is invalid”).

   [5] Thus, a defense counsel’s erroneous advice may consti-
tute 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. Our recent decision in Garcia is
6764                 UNITED STATES v. DAVIS
illustrative. There the defendant moved to withdraw his plea
based on newly-discovered evidence. We held that,

    [w]hile newly discovered evidence wholly unrelated
    to a defendant’s case would surely not entitle him to
    withdraw his guilty plea, the generous “fair and just
    reason” standard does not require that the defendant
    show that the new evidence exonerates him or that
    there is a reasonable probability he would not have
    been convicted had the case gone to 

. We also did not require Garcia to prove that
he would not have pled guilty had he been aware of the newly
discovered evidence:

    Had Garcia known about this evidence earlier, he
    may well have changed his mind about whether to
    plead guilty. We need not hypothesize about the rip-
    ple effect of the new evidence or speculate about its
    potential effect on a jury. It is sufficient that this evi-
    dence was relevant evidence in Garcia’s favor that
    could have a least plausibly motivated a reasonable
    person in Garcia’s position not to have pled guilty
    had he known about the evidence prior to pleading.

(emphasis added). Thus, a defendant may dem-
onstrate a fair and just reason for plea withdrawal by showing
that his counsel’s gross mischaracterization plausibly could
have motivated his decision to plead guilty. Nothing in Rule
11(d)(2)(B) requires a defendant to show more in order to sat-
isfy the “fair and just reason” standard.

   [6] We have little difficulty concluding that, under this
standard, the district court in its discretion could have permit-
ted defendant to withdraw his plea. Defense counsel’s testi-
mony that defendant was uncertain as to whether to plead
guilty until the very last moment, defendant’s son’s testimony
that defendant stated that he was pleading guilty to avoid jail,
                    UNITED STATES v. DAVIS                6765
and defendant’s advanced age and poor health, all support a
finding that defense counsel’s gross mischaracterization of the
likely sentencing range could have motivated defendant to
plead guilty. The district court, however, incorrectly believed
that it did not have discretion to permit defendant to withdraw
his plea unless defendant proved actual prejudice. The district
court’s unduly narrow view of its discretion requires us to
vacate the denial of defendant’s motion to withdraw his plea.
See United States v. Ruiz, 

, 1033 (9th Cir. 2001)
(en banc) (holding that a district court’s application of the
wrong legal standard on a motion to withdraw a plea consti-
tutes an abuse of discretion).

   [7] In Ortega-Ascanio and Garcia, we determined that
under the correct legal standard it would have been an abuse
of discretion not to grant the defendant’s motion to withdraw.
We do not make that determination here; instead, we remand
to the district court to decide anew defendant’s motion to
withdraw his plea based on the correct legal standard. See

.

B.    The Booker Claim

   [8] While defendant’s appeal was pending, the United
States Supreme Court decided Booker. The Court held that the
Sentencing Guidelines are advisory and that the appellate
courts should review sentences for 

. “Because we cannot say that the district
judge would have imposed the same sentence in the absence
of mandatory Guidelines and de novo review of downward
departures,” United States v. Ruiz-Alonso, 

, 820
(9th Cir. 2005), and in the event the district court does not
permit defendant to withdraw his plea, the district court shall
resentence defendant in accordance with Booker.

     VACATED AND REMANDED.
6766                     UNITED STATES v. DAVIS
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, 

, 57-59 (1985), as previously applied
to presentence cases in United States v. Signori, 

,
638 (9th Cir. 1988) and United States v. Rubalcaba, 

, 494 (9th Cir. 1987). Thus, even if this panel were to set
forth a new standard, the district court could hardly be criti-
cized 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.” 

is equally applicable to our situation.

   The majority, however, contends that Rubalcaba’s applica-
tion 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 pre-
sentence motions to withdraw and post-sentence challenges to
pleas.”2 This statement is nothing more than a synopsis of the
   1
     The Hill standard has also been applied in the presentencing context in
cases arising in other circuits. See, e.g., United States v. Pellerito, 878 F2d
1535 (1st Cir. 1989).
   2
     The majority also attempts to distinguish Rubalcaba and Signori on the
grounds that neither case involved a finding by the district court that coun-
sel had rendered defective advice.
                    UNITED STATES v. DAVIS                 6767
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 par-
ticular argument, or line of thought, in reaching its bottom
line does not provide a valid basis for distinguishing other-
wise 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 perpet-
ual tabula rasa. See United States v. Johnson, 

,
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 Kozin-
ski, J.); see also Barapind v. Enomoto, 

, (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 unwork-
able 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 stan-
dard. The district court found that Davis had not met his bur-
den of offering a fair and just reason because — to use the
majority’s phrase — he had not shown “that but for his coun-
sel’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 if 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,
6768                    UNITED STATES v. DAVIS
a competent criminal defense counsel may misadvise his cli-
ent as to some relevant aspect of the case when entering into
the plea agreement, in order to preserve the option of subse-
quently moving to withdraw the plea if the presentencing
report indicates that sentencing is likely to be less favorable
than anticipated.3

   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 determi-
nation that even accepting that counsel “grossly mischaracter-
ized 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 rever-
sal 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 with-
draw his plea” even if the defendant did not prove actual prej-
udice. 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.
  3
    Here, it is noteworthy that the presentencing 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, 

(9th Cir. 2003) (noting that “[i]n the instant case, Nostratis moved to with-
draw 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.
                       UNITED STATES v. DAVIS                      6769
   Furthermore, the majority errs in holding that an inquiry as
to what constitutes “fair and just reason” for a plea with-
drawal 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 per-
formance, he would have withdrawn his guilty plea. In United
States v. Ortega-Asciano, 

, 883 (9th Cir. 2004),
we held that a defendant did not have to show that a “plea was
invalid.” Similarly, United States v. Garcia, 

(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 col-
loquy. 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. Rubal-

.
  4
   Ortega-Asciano involved a defendant who was arguing changed cir-
cumstances 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 submit-
ted.
6770                   UNITED STATES v. DAVIS
   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, 

,
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 sen-
tence, I would affirm this portion of the district court’s decision.5




  5
   I agree with the majority, however, as to Part B.