United States v. Robert E. Hyde

82 F.3d 319 96 Cal. Daily Op. Serv. 2991 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HYDE, Defendant-Appellant. No. 95-10113. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 1996. Decided April 30, 1996. Ferguson, Circuit Judge, concurred and filed a separate statement. Jonathan D. Soglin, Oakland, California, for defendant-appellant. Joel R. Levin, Assistant United States Attorney, San Francisco, California, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. No. CR-91-00672-SBA. Before: WARREN J. FERGUSON, DOROTHY W. NELSON, and FERDINAND F. FERNANDEZ, Circuit Judges. Opinion by Judge FERNANDEZ; Concurrence by Judge FERGUSON. FERNANDEZ, Circuit Judge: 1 Robert Elmer Hyde was indicted for mail fraud and wire fraud. See 18 U.S.C. §§ 1341 , 1343, 2(b). He then entered into a plea agreement and entered his guilty plea. The district court accepted the guilty plea but reserved ruling on the acceptance of the plea agreement until it had seen the presentence report. Long before that report was prepared, Hyde moved to withdraw…

Opinion by Judge FERNANDEZ; Concurrence by Judge FERGUSON.

Robert Elmer Hyde was indicted for mail fraud and wire fraud. See 18 U.S.C. §§ 1341 , 1343, 2(b). He then entered into a plea agreement and entered his guilty plea. The district court accepted the guilty plea but reserved ruling on the acceptance of the plea agreement until it had seen the presen-tence report. Long before that report was prepared, Hyde moved to withdraw his plea. The district court determined that he had not given a sufficient reason to justify withdrawal. Thus, it denied his motion and went forward to judgment and sentencing. Hyde appealed. We reverse and remand.

STANDARD OF REVIEW

We review for an abuse of discretion the district court’s denial of a motion to withdraw a guilfy plea. See United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995). A failure to apply the correct legal principles is an abuse of discretion. See Hunt v. National Broadcasting Co., Inc., 872 F.2d 289, 292 (9th Cir.1989).

DISCUSSION

The government argues and the district court found that Hyde did not offer a “fair and just reason” to withdraw his plea. Fed.R.Crim.P. 32(e). However, we have held that when a defendant makes a…

concurring.

While I concur in the opinion of this case, I write in order to restate my dissent in United States v. Cordova-Perez, 65 F.3d 1552 (9th Cir.1995).

I continue to believe that case was decided incorrectly and that an injustice was done. Yet the government insisted upon the result. Now it would like us to disregard Cordova-Perez , which of course would be a monumental disaster. The government cannot have it both ways. When it advocated the result in Cordova-Perez , it must live with the mistake.