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Name: U.S. v. McTiernan
Case #: 07-50430
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/21/2008

Under the applicable Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a previously entered guilty/no contest plea if there is a fair and just reason for withdrawal. Defendant completed and submitted a declaration attesting that his attorney had advised him of possible defenses and he was satisfied with the representation, and then pled guilty to making a false statement to an FBI agent. Seventeen months later, prior to imposition of sentence, he moved to withdraw his plea, claiming trial counsel had not advised him that he could have sought suppression of evidence. The district court denied the motion, citing, among other factors, that defendant sought to withdraw the plea because the government sought a custodial sentence. The reviewing panel held that there was no indication that in denying the motion, the district court applied the proper standard -– i.e., whether the defendant showed that proper advice could have at least plausibly motivated a reasonable person in the defendant’s position not to have pled guilty had he known about the grounds for suppression prior to pleading; (2) that a declaration by counsel accepted by the district court to support denial of the motion lacked the clarity and precision that would enable a conclusion that the defendant was properly and adequately advised; (3) that the defendant was not required at this point to produce evidence of a criminal or tortious purpose for the evidence –- a recording; and (4) that the district court’s finding that the defendant sought to withdraw his guilty plea only to avoid a custodial sentence did not bear upon the standard for determining a fair and just reason for withdrawal. The panel remanded for the district court to determine, after conducting a full evidentiary hearing, whether the defendant can establish a fair and just reason to withdraw his plea.