United States v. Clifford A. Davis, M.D.

410 F.3d 1122 UNITED STATES of America, Plaintiff-Appellee, v. Clifford A. DAVIS, M.D., Defendant-Appellant. No. 04-50030. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 2005. Filed June 9, 2005. Randy S. Kravis, Studio City, CA, for the defendant-appellant. Ronald L. Cheng, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. CR-00-1132-MMM. Before GRABER and CALLAHAN, Circuit Judges, and BREYER, * District Judge. BREYER, District Judge. We must decide whether a district court has discretion to permit a defendant to withdraw his guilty plea prior to sentencing 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…

We must decide whether a district court has discretion to permit a defendant to withdraw his guilty plea prior to sentencing 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 conspiracy to distribute Dilau *1124 did, a Schedule II controlled substance, and for twelve separate distribution counts. After several continuances, 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 charging defendant with two counts of violating 21 U.S.C. § 843 (b), using a telephone to facilitate a conspiracy to distribute illegal narcotics by means of false and fraudulent drug prescriptions. The plea agreement unambiguously stated that defendant’s…

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, 474 U.S. 52, 57-59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), as previously applied to presen-tence cases in United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988) and United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.1987). Thus, even if this panel *1129 were to set forth a new standard, the district court could hardly be criticized for following established case law.

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 Rubaleaba’s attorney acted…