United States v. Lee

MEMORANDUM **

Devonne Michael Lee appeals the district court’s denial of his pre-sentencing motion to withdraw his guilty plea to conspiracy to distribute more than fifty grams of cocaine base and to possession of a firearm in furtherance of drug trafficking, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(A), and 18 U.S.C. § 924 (c), respectively. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court correctly concluded that Lee failed to demonstrate a fair and just reason for requesting withdrawal of his guilty plea. See Fed.R.Crim.P. 11(d)(2)(B); United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004). Lee’s reliance on United States v. Davis, 428 F.3d 802 (9th Cir.2005), is misplaced. Although we held in Davis that “a defense counsel’s erroneous advice may warrant withdrawing a plea even if the defendant does not prove that he would not have pleaded guilty but for the erroneous advice,” id. at 807 , this does not imply that any erroneous advice from counsel automatically constitutes a “fair and just” reason for withdrawal under Rule 11(d)(2)(B). Indeed, Davis does not overrule the well-established principle that an “erroneous prediction by…