United States v. Danilo Banos-Mejia

ORDER

The memorandum disposition filed on September 16, 2014, is withdrawn and another memorandum disposition is filed concurrently with this order.

The government’s motion for panel rehearing is denied as moot.

MEMORANDUM

Danilo Banos-Mejia appeals his conviction and sentence following a guilty plea to one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, and affirm in part without prejudice, with instructions.

1. Banos contends that the district court abused its discretion by denying his request to withdraw his guilty plea. A defendant may withdraw a guilty plea pri- or to sentencing if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). “A defendant cannot withdraw his plea because he realizes that his sentence will be higher than he had expected.” United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir.2003); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989) (“Nor do we believe that fear of receiving a harsh sentence, standing alone, constitutes a ‘fair and just’ reason to withdraw a plea, even if counsel’s…