Manukian

dissenting.

Because relief is denied to Appellant Manukian, I respectfully dissent, for in my view “just and fair” reasons existed to permit Appellant to withdraw his prior guilty plea. Fed R.Crim. P. 32(e).

Appellant contends that the Assistant United States Attorney (“AUSA”) represented that his plea would create no immigration problems for him. The AUSA acknowledged that he had spoken to the INS about Appellant’s case, but said that he told Appellant only that the INS informed him that Appellant’s plea would not lead to his mandatory deportation as an aggravated felon. Appellant’s plea subjects him to deportation for having committed a crime of moral turpitude.

Doubtless a guilty plea should not be obtained through misrepresentations by the prosecutor. United States v. Mathews, 833 F.2d 161, 165 (9th Cir.1987). Here, there is no evidence of any intentional misrepresentation of the AUSA, but there appears to have been a misunderstanding concerning the scope of the AUSA’s assurances. Although misrepresentations might compel a court to permit plea withdrawal, the absence of misrepresentation does not compel a conclusion that pleas must stand. Instead, under Rule 32(e) the…

MEMORANDUM *

The district court did not clearly err in determining that no affirmative misrepresentation had been made to Karen Manukian regarding the immigration consequences of his plea. Although it is clear that the conversations between the Assistant United States Attorney and the defendant’s counsel generated a misunderstanding, the district court engaged in a detailed discussion regarding immigration consequences at the plea colloquy. While there is some debate about what occurred off the record, there is a clear record of the court advising Manukian of the possibility of deportation and Manukian’s acknowledgment of such possible consequences. On this record, we cannot say the district court abused its discretion by denying the withdrawal of plea. See United States v. Castello, 724 F.2d 813, 815 (9th Cir.1984) (district court entitled to credit defendant’s testimony at Rule 11 hearing over her subsequent affidavit).

Manukian’s argument that a preplea chambers conference should have been reported pursuant to Federal Rule of Criminal Procedure 11(g) is without merit. Rule 11(g), by its terms, requires a record “of the proceedings at which the defendant enters a plea.” A…