United States of America, Plantiff-Appellee v. Murphy Vincent Tenerio

127 F.3d 1108, 1997 WL 661518

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 1997
• Docket: 96-10541
• Status: Unpublished

Opinion

127 F.3d 1108

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of AMERICA, Plantiff-Appellee,
v.
Murphy Vincent TENERIO, Defendant-Appellant.

No. 96-10541.

United States Court of Appeals, Ninth Circuit.

Submitted October 9, 1997.*
Decided Oct. 14, 1997.

Appeal from the United States District Court for the District of Arizona, No. CR-89-00115-JMR; John M. Roll, District Judge, Presiding.

Before: HUG, Chief Judge, WALLACE and HALL, Circuit Judges.

Tenerio appeals from the district court's final order denying his postappeal "motion to withdraw plea agreement," or, more accurately, his motion withdraw his admission to violating the terms of his supervised release. The district court denied the motion as untimely. However, the district court did not have jurisdiction over Tenerio's motion, and we have no jurisdiction over Tenerio's appeal.

We have rejected a similar motion to withdraw a plea based on Federal Rule of Criminal Procedure 32(d), which is identical to the current Federal Rule of Criminal Procedure 32(e). We explained:

The ... rule ... provides that, after sentencing, "a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Thus a defendant now cannot make a postsentence motion to the trial court to withdraw his guilty plea, and, hence, the district court had no jurisdiction to entertain [the defendant's] motion. We have no jurisdiction to consider the merits of [the defendant's] appeal from the denial of the motion.

United States v. Baker, 790 F.2d 1437, 1438 (9th Cir.1986). We follow Baker and hold that the district court was without jurisdiction and we have no jurisdiction to review the denial of Tenerio's motion to withdraw his admission to violating the terms of his supervised release. The district court order is vacated and we remand to the district court to dismiss the proceeding for lack of jurisdiction, and this appeal is dismissed.

APPEAL DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4