Garcia-Rico

concurring in part and dissenting in part.

I respectfully dissent from the majority’s conclusion that the district court did not abuse its discretion in denying Garcia-Rico’s motion to withdraw his guilty plea. “A defendant may withdraw a guilty plea after its acceptance but before sentencing if the defendant shows a fair and just reason for requesting the withdrawal.” United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir.2005) (internal quotation omitted). We apply this standard liberally. Id. We recently held that an attorney’s mischaracterization of, and a defendant’s subsequent misunderstanding about, the sentence the defendant was likely to receive is sufficient to satisfy the “fair and just reason” standard. United States v. Davis, 428 F.3d 802, 805-808 (9th Cir. 2005).

“A district court abuses its discretion when it makes an error of law.” United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004). The district court in Garcia-Rico’s case did not have the benefit *575 of our recent decision in Davis . It is unclear from the district judge’s comments on what grounds he denied Garcia-Rico’s motion to withdraw his guilty plea. Garcia-Rico presented evidence that his…

MEMORANDUM *

Armando Garcia-Rico appeals his conviction and sentence following his guilty plea for conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 , and possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841 (a)(1). We affirm in part and grant a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

Rule

Garcia-Rico argues that Rule 11 was violated because he never admitted, and the district court never advised him of, the quantity of drugs involved. However, Garcia-Rico cannot show that this error seriously affected the “fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) (citations and internal quotation marks omitted); see also United States v. Valensia, 299 F.3d 1068, 1070 (9th Cir. 2002); United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.2002).

Next, Garcia-Rico argues that Rule 11 was violated because the district court failed to advise him of the applicability of the Sentencing Guidelines. Garcia-Rico cannot show that this was plain…