United States v. David J. Kay

537 F.2d 1077, 1976 U.S. App. LEXIS 8384

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 1976
• Docket: 75--3844
• Status: Published

Opinion

537 F.2d 1077

UNITED STATES of America, Plaintiff-Appellee,
v.
David J. KAY, Defendant-Appellant.

No. 75--3844.

United States Court of Appeals,
Ninth Circuit.

June 23, 1976.

Richard G. Sherman (argued), Los Angeles, Cal., for defendant-appellant.

John Vandevelde, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before BARNES, HUFSTEDLER and CHOY, Circuit Judges.

PER SURIAM:

We do not think that the district court abused its discretion in refusing to permit Kay to withdraw his guilty plea. Kay did not attempt to withdraw his plea until after his codefendants had been sentenced. At that time he realized that adherence to his plea bargain would result in his imprisonment. Under these circumstances, his situation is akin to that of a defendant who seeks to withdraw his plea after sentencing. The district judge could reasonably have concluded that withdrawal of the plea would have permitted 'appellant to use the guilty plea as a means of testing the weight of the potential sentence--a primary policy ground for denying plea changes.' United States v. Simmons, 497 F.2d 177, 179 (5th Cir. 1974).

We find no merit to Kay's contention that he was inadequately represented by his counsel.

Affirmed.