United States v. Rubalcaba

811 F.2d 491
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 25, 1987
DocketNo. 85-5161
StatusPublished
Cited by102 cases

This text of 811 F.2d 491 (United States v. Rubalcaba) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rubalcaba, 811 F.2d 491 (9th Cir. 1987).

Opinion

BRUNETTI, Circuit Judge:

Alfredo Rubalcaba appeals the district court’s denial of his motion to withdraw a guilty plea. Rubalcaba contends his plea was taken in violation of Federal Rule of Criminal Procedure 11 because (1) he did not knowingly and voluntarily waive his right to a jury trial, (2) the district court failed to explain the special parole term, (3) the district court failed to establish a factual basis for the conspiracy charge, and (4) Rubalcaba did not understand the plea agreement. Rubalcaba also contends that he was denied effective assistance of counsel, the imposition of sentences on counts I and IV constitute double jeopardy, and his due process rights were violated because he did not have sole access to his interpreter.

We reject Rubalcaba’s contentions and affirm.

I.

Background

On December 4, 1984 an indictment charged Rubalcaba with conspiracy to possess and distribute heroin (count I), distributing heroin (count II), possession of a firearm during the commission of a felony (count III), possession with intent to distribute heroin (count IV), and assaulting a federal officer (count V). Rubalcaba pled guilty to counts I through IV on February 12, 1985. In return, the government dismissed count V and agreed not to contest the imposition of concurrent sentences on counts I and II.

Before sentencing, Rubalcaba filed a motion under Federal Rule of Criminal Procedure 32(d) to withdraw his plea and a motion under Rule 32(c)(3)(D) to correct his presentence report. The grounds for withdrawal of the plea were that Rubalcaba misunderstood the plea agreement, that he was denied effective representation, and that he did not knowingly and intelligently waive his right to a jury trial. After a hearing, the district court denied Rubalcaba’s Rule 32(d) motion and granted his motion to correct the presentence report. Rubalcaba timely appealed.

II.

Standard of Review

This court’s reviews a district court’s denial of a motion for withdrawal of a guilty plea for abuse of discretion. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985); United States v. Castello, 724 F.2d 813, 814 (9th Cir.), cert. denied, 467 U.S. 1254, 104 S.Ct. 3540, 82 L.Ed.2d 844 (1984). Federal Rule of Criminal Proee-

[493]*493dure 32(d) states that "[i]f a motion for withdrawal of a plea of guilty ... is made before sentence is imposed ... the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” The defendant has no “right” to withdraw his plea. Castello, 724 F.2d at 814 (citing United States v. Youpee, 419 F.2d 1340, 1343 (9th Cir.1969)). Most courts have relied on dictum in Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), to define the fair and just standard. Fed.R. Crim.P. 32 advisory committee note; see, e.g., United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir.1980); United States v. Webster, 468 F.2d 769, 771 (9th Cir.1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973). In Kercheval the Supreme Court stated that a court shall “vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence.” 274 U.S. at 224, 47 S.Ct. at 583.

III.

Analysis

A. Federal Rule of Criminal Procedure 11

1. Jury Trial Waiver

Rubalcaba first contends that he did not expressly waive his right to a jury trial. Therefore, he argues, his guilty plea was not knowingly and intelligently given as required by Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). See also Fed.R.Crim.P. 11(c)(3), (4) (court must inform defendant that he has “the right to be tried by a jury” and that by pleading guilty “he waives the right to a trial”). This court has stated that “Boykin does not require specific articulation of the rights being waived by the guilty plea.” United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839, 104 S.Ct. 131, 78 L.Ed.2d 126 (1983). The trial court informed Rubalcaba that he had a right to trial by jury. That the court later told Rubalcaba he was waiving the right to “trial” rather than “jury trial,” is not a “fair and just” reason to permit Rubalcaba to withdraw his plea.

2. Special Parole Term

Rubalcaba claims the district court erred by failing to explain the effect of a special parole term before accepting Rubalcaba’s plea. Rubalcaba failed to raise this claim below in his motion to withdraw his plea. As a general rule, we will not consider issues raised for the first time on appeal. Bolker v. Commissioner of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.1985).

In Bolker we discussed exceptions to this general rule. Id. Rubalcaba fails to satisfy any of these exceptions. He has not shown “ ‘exceptional circumstances why the issue was not raised below.’ ” International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985) (quoting Taylor v. Sentry Life Insurance Co., 729 F.2d 652, 655-56 (9th Cir.1984) (per curiam)). Rubalcaba has also failed to show the government suffered no prejudice by his failure to raise the issue in his motion to withdraw. To fall under the second Bolker exception, Rubalcaba must demonstrate that the government would not have presented new evidence or made new arguments at the hearing on the motion to withdraw the plea if Rubalcaba had raised the issue in his motion or at the hearing. United States v. Gabriel, 625 F.2d 830, 832 (9th Cir.1980) (citing United States v. Patrin, 575 F.2d 708, 712 (9th Cir.1978)), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). Rubalcaba has not made such a showing. Therefore, we will not consider the merits of Rubalcaba’s claim.

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