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

428 F.3d 802 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. Amended November 2, 2005. 1 Randy S. Kravis, Studio City, CA, for the defendant-appellant. 2 Ronald L. Cheng, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee. 3 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. 4 Before GRABER and CALLAHAN, Circuit Judges, and BREYER, * District Judge. 5 Opinion by District Judge BREYER; Partial Dissent by Judge CALLAHAN, ORDER 6 The opinion filed on June 9, 2005, slip op. 6753, and appearing at 410 F.3d 1122 (9th Cir.2005), is replaced by the amended opinion and dissent filed concurrently with this order. 7 Petitions for rehearing or for rehearing en banc may be filed. OPINION 8 BREYER, District Judge. 9 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…

Opinion by District Judge BREYER; Partial Dissent by Judge CALLAHAN,

ORDER

The opinion filed on June 9, 2005, slip op. 6753, and appearing at 410 F.3d 1122 (9th Cir.2005), is replaced by the amended opinion and dissent filed concurrently with this order.

Petitions for rehearing or for rehearing en banc may be filed.

OPINION

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-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, pleaded…

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 *809 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 presentenc-ing 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 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 Rubalcaba’s attorney acted…