Mercado-Tapia

MEMORANDUM **

Alejandro Mercado-Tapia pled guilty to illegal re-entry after deportation under 8 U.S.C. § 1326 . He appeals (1) the district court’s denial of his motion to withdraw his guilty plea and (2) his sentence.

I

“Prior to sentencing, a defendant can withdraw his guilty plea only by showing a fair and just reason for withdrawal.” United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir.2003) (citing Fed.R.Crim.P. 11(d)(2)(B)). Fair and just reasons include “inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason ... that did not exist when the defendant entered his plea.” United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir.2004).

The court did not abuse its discretion in denying Mercado Tapia’s motion. It found as fact that the plea “colloquy was adequate and fair under the rules, that Mercado-Tapia understood the nature of the charge, that the sentencing guidelines would apply, but the Court could sentence above or below those sentencing guidelines ... [and] he understood that the sentence could be up to 20 years maximum.” These findings of fact were not clearly erroneous. At the change of plea hearing on…