United States v. Chandler

MEMORANDUM *

In No. 06-30178, Defendant Mitchell Chandler appeals the district court’s denial of a motion to withdraw his guilty plea to a charge of second-degree murder, and he appeals his sentence. In No. 06-30415, Defendant brings an interlocutory appeal of the district court’s denial of a motion to dismiss the indictment for attempted escape. We affirm.

*705 1. The district court did not abuse its discretion in denying Defendant’s motion to withdraw his plea under Rule 11(d) of the Federal Rules of Criminal Procedure. See United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir.2005) (reviewing for abuse of discretion). The district court correctly found that the plea colloquy was adequate because, although Defendant expressed some initial hesitation about whether he acted with “malice aforethought,” the record demonstrates that he ultimately made an “informed and intelligent” plea. United States v. Barrios-Gutierrez, 255 F.3d 1024, 1028 (9th Cir.2001) (en banc). The district court did not abuse its discretion in rejecting Defendant’s arguments about ineffective assistance of counsel and about purported “new evidence.” The district court’s rejection of Defendant’s…

concurring in part and dissenting in part:

I agree with the majority on all points save one. I would hold that the government breached its obligation in the plea agreement to recommend an adjustment for acceptance of responsibility and, therefore, would remand for resentencing in case No. 06-30178.

In my view, this case is controlled by United States v. Mondragon, 228 F.3d 978 (9th Cir.2000), and United States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. *707 2001). The plea agreement states unequivocally that “[t]he United States will recommend” an adjustment for acceptance of responsibility. It is undisputed that the government never made such a recommendation. See Mondragon, 228 F.3d at 980 (holding that “the government is held to the literal terms of the [plea] agreement”). To the contrary, the government recommended at sentencing that the district court follow the probation officer’s presentence report, which recommended that no adjustment be given for acceptance of responsibility. See Camarillo-Tello, 236 F.3d at 1028 (holding that the government’s previous recommendation in accord with the plea agreement was “undercut ... by the government’s affirmative statement in…