United States v. Cheng Koy Saecho

73 F. App'x 1000

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 10, 2003
• Docket: No. 02-30248, 02-30229; D.C. No. CR-01-00165-A-JWS, CR-01-00102-JWS
• Status: Published

Opinion

MEMORANDUM

*

Following a bench trial, the district court convicted and sentenced Cheng Koy Saechao for conspiracy to attempt to import opium, in violation of 21 U.S.C. § 963, attempt to import opium, in violation of 21 U.S.C. § 963, and facilitating transportation of smuggled goods, in violation of 18 U.S.C. § 545. Saechao raises three arguments on appeal. First, he contends that the district court erred in allowing the government to withdraw from a plea agreement negotiated by the two parties. Second, Saechao argues that his waiver of a jury trial was not voluntarily, knowingly, and intelligently made. Third, Saechao contends that he should have been granted a two point reduction under the Sentencing Guidelines for “acceptance of responsibility.” We reject these arguments and affirm.

Either party may withdraw from a plea agreement before it is approved and accepted by the court. United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992) (“[N]either the defendant nor the government is bound by a plea agreement until it is approved by the court.”); see also United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993) (“A plea agreement that has not been entered and accepted by the trial court does not bind the parties.”). Although there is a detrimental reliance exception to this general rule, Savage, 978 F.2d at 1138, Saechao cannot prove that he detrimentally relied on the plea agreement. Therefore, we conclude that the district court did not err by granting the government’s motion to withdraw from the plea agreement and refusing to enforce the plea agreement.

We further conclude that Saechao’s waiver of his right to a jury trial was voluntary, knowing, and intelligent, and in accordance with Federal Rule of Criminal Procedure 23(a).¹ The waiver was in writing; the court required it to be read to Saechao in translation before he signed it; the government consented to the waiver; the court accepted it; and the waiver was made voluntarily, knowingly, and intelligently. See Duarte-Higareda, 113 F.3d at 1002 (citing United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985)).

The United States Sentencing Guideline § 3El.l(a) requires the sentencing court to reduce Saechao’s offense level by two levels “[i]f [he] clearly demonstrates acceptance of responsibility for his offense.” We conclude that the district court did not abuse its discretion in denying Saechao an adjustment for acceptance of responsibility. See United States v. Mohrbacher, 182 F.3d 1041, 1052-53 (9th Cir.1999).

AFFIRMED.

PREGERSON, Circuit Judge, dissenting in part and concurring in part. PREGERSON, Circuit Judge.

In may view, the district court failed to conduct, through the court appointed interpreter, an in-depth colloquy with Saechao to ensure that his jury waiver was voluntary, knowing, and intelligent. See United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir.1997); United States v. Christensen, 18 F.3d 822, 826 (9th Cir.1994). Therefore, I would reverse and remand on the jury waiver issue. I concur on the other two issues.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . This court reviews de novo the adequacy of a jury waiver, which is a mixed question of fact and law. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997).