United States v. Marc Hubbard

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2019
• Docket: 18-10153
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10153

Plaintiff-Appellee, D.C. No. 1:12-cr-01133-LEK-1 v.

MARC HUBBARD, MEMORANDUM and ORDER* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Submitted October 24, 2019** Honolulu, Hawaii

Before: GRABER, M. SMITH, and WATFORD, Circuit Judges.

The issue raised in this appeal is whether the district court properly denied

Marc Hubbard’s motion to withdraw his guilty plea, which asserts that his plea was

not knowingly and voluntarily made. Hubbard pleaded guilty pursuant to a plea

agreement in which he waived the right to appeal, with two exceptions not relevant

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 4

here. The government asks us to enforce the appeal waiver. Before doing so, we

must determine whether the appeal waiver is valid, and that determination turns on

whether Hubbard’s guilty plea is valid. So notwithstanding the appeal waiver, we

must decide whether Hubbard presented the district court with a “fair and just

reason” to withdraw his plea. Fed. R. Crim. P. 11(d)(2)(B).

1. Hubbard first contends that he should have been permitted to withdraw

his guilty plea because it was the product of coercion. Specifically, he testified

that the mob threatened to harm or kill him and his family if he cooperated with the

government. He further testified that federal prosecutors threatened to reveal his

cooperation to the mob unless he agreed to plead guilty.

The district court did not clearly err by finding Hubbard’s testimony not

credible. Hubbard pleaded guilty on October 4, 2016. By his own account,

Hubbard knew no later than October 11, 2016, that the mob had learned about his

cooperation with the government. From that point forward, no threat could have

prevented Hubbard from moving to withdraw his plea, for his fear of exposure had

already come to fruition. Yet he waited until the eve of his sentencing hearing,

more than 16 months later, before moving to withdraw his plea, without offering

any convincing explanation for the delay. Given those facts, the district court was

understandably skeptical about the truthfulness of Hubbard’s coercion testimony.

See United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003). The court Page 3 of 4

confirmed that it found Hubbard’s story not credible when, at sentencing, it

imposed an enhancement for obstruction of justice on the basis of Hubbard’s

materially false testimony during the hearing on the motion to withdraw his guilty

plea. We see no basis to disturb the district court’s conclusion that Hubbard failed

to show a “fair and just reason” for withdrawing his guilty plea based on alleged

coercion.

2. Hubbard next contends that he should have been permitted to withdraw

his guilty plea because the district court failed to advise him during the plea

colloquy that he would have no right to withdraw his plea if the court decided not

to follow the plea agreement’s sentencing recommendation. See Fed. R. Crim.

P. 11(c)(3)(B). We find no error on this score, plain or otherwise. The district

court fulfilled the duty imposed by Rule 11(c)(3)(B) when it explained: “If the

sentence is more severe than you expected, you will still be bound by your plea.

Even if you don’t like the sentence I impose, you won’t be able to take back your

guilty plea at that point.” The court was not required to read a word-for-word

script in advising Hubbard of his inability to withdraw his plea, and the advisement

the court gave adequately conveyed the substance of what Rule 11(c)(3)(B)

requires.

3. Because Hubbard has provided no basis for concluding that his guilty

plea was invalid, the appeal waiver in his plea agreement is valid and enforceable. Page 4 of 4

We therefore dismiss this appeal. See United States v. Brizan, 709 F.3d 864, 867

(9th Cir. 2013).

Hubbard’s motion to strike the government’s supplemental excerpts of

record (Dkt. No. 30) is DENIED. We have disregarded those portions of the

government’s supplemental excerpts that contain documents not part of the record

in this case.

DISMISSED.