* This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. This court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 8 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE DE JESUS DE LA

CRUZ-RAMOS,

Defendant-Appellant.

No. 96-4142

(D.C. No. 96-CR-44)

(D. Utah)

ORDER AND JUDGMENT*

Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral argument.

See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

I

In this direct appeal, defendant-appellant De La Cruz-Ramos raises only the issue of

whether the district judge abused his discretion in denying defendant’s motion to withdraw
- 2 -

his guilty plea. Mr. De La Cruz-Ramos was charged in a one count indictment with re-entry

by a deported alien, subsequent to conviction for an aggravated felony, in violation of

8 U.S.C. § 1326. After initially entering a plea of not guilty, the defendant entered into a plea

agreement with the government. The plea agreement called for the government to

recommend sentencing at the low end of the applicable range and for the defendant to receive

a reduction in offense level for acceptance of responsibility. A change of plea hearing was

set.

At the change of plea hearing, the district judge made the appropriate inquiries into

the defendant’s understanding of the charge against him, the maximum possible penalty, and

the fact that the actual sentence would be determined by application of the Sentencing

Guidelines. Upon inquiry from the court, Mr. De La Cruz-Ramos stated that he was satisfied

with his court appointed attorney. II R. at 9. Under oath, defendant admitted that he had

previously been convicted of possession of heroin with intent to distribute and that he had

reentered the United States after deportation without authorization. II R. at 11-13. The

district court made all other inquiries required under Fed. R. Crim. P. 11. At the conclusion

of this hearing, the court found the plea of guilty was knowingly and voluntarily entered, that

there was a factual basis for the plea, and the judge found defendant guilty on his plea of

guilty and set a date for sentencing. II R. at 14-15.

The presentence report prepared by the probation office determined that the

appropriate guidelines range was 77 to 96 months. No objection was filed before the
- 3 -

scheduled sentencing hearing on July 23, 1996, but defense counsel had not received a copy

of the presentence report until five days before the scheduled hearing. At the sentencing

hearing, defense counsel told the court that he had tried to go over the presentence report

with Mr. De La Cruz-Ramos, but had not been able to arrange for an interpreter to assist him

in this until the night before the hearing. He said that he had not been able to go over the

entire report with defendant, because his client had become unhappy with his representation.

Defense counsel further told the court that defendant wanted new counsel appointed. II R.

at 3. Defendant had written a letter to the judge which he would like the judge to read. The

district judge said that counsel should finish going over the presentence report with

defendant, and continued the hearing until later that same day for that purpose. Id. at 5-6.

When the hearing resumed several hours later, Mr. De La Cruz-Ramos asked for a

week’s continuance. The judge granted an eight-day continuance. Id. at 9. When the

hearing resumed on July 31, 1996, defendant moved to withdraw his plea and asked for a

new attorney by submission of the same letter which he had offered to the court the week

before. Because this letter is brief and pertains to the only issue raised, we will quote it in

full:

Respectfully I would like to ask This Court to postpone my sentencing.

My attorney took the time to visit me in jail only one day before my sentencing

to tell me that the information he had originally given me was incorrect.

I pled guilty because of the assurance that I would receive a sentence

between 41-61 months. However it was only last night, as the court can verify,

that my attorney went to see me with the news that the appropriate guideline

was 77-96 months.
- 4 -

As the court can clearly see, this is a drastic change and is not fair nor

just to receive such news the night before my sentencing.

For this reason I wish The Court to please consider assigning me a new

attorney, one who will have my best interest in mind, and not one who shows

up to lament my situation rather than presenting defense.

Thank You

Jesse De La Cruz

I R., Item 17. The district judge denied Mr. De La Cruz-Ramos’ request, stating that he saw

no basis for appointing new counsel, nor for permitting withdrawal of the guilty plea. Id. at

4-5. The court proceeded to sentence defendant to 77 months of imprisonment, the low end

of the guidelines range, three years of supervised release, and a $50 special assessment. Id.

at 8-9. Defendant has appealed.

II

We review the denial of a motion to withdraw a guilty plea under the abuse of

discretion standard. United States v. Carr, 80 F.3d 413, 419 (10th Cir. 1996). Withdrawal

of pleas is governed by Fed. R. Crim. P. 32(e), which states that if a motion is made before

sentencing, “the court may permit the plea to be withdrawn if the defendant shows any fair

and just reason.” Thus, we will not find an abuse of discretion unless the appellant can show

that the trial court acted unjustly or unfairly. Carr, 80 F.3d at 419. However, we have also

said that a motion to withdraw a plea before sentencing should be freely allowed and viewed

with favor. Id.

Seven factors are to be considered: (1) whether the defendant has asserted his
- 5 -

innocence; (2) whether withdrawal of the guilty plea would prejudice the government; (3)

the delay, if any, in filing the motion to withdraw and reasons therefor; (4) whether

withdrawing the plea would substantially inconvenience the court; (5) the assistance of

counsel; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal

would waste judicial resources. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993).

Mr. De La Cruz-Ramos asserts that there would be no prejudice to the government

in permitting withdrawal of his plea, other than the minimal amount inherent in the nature

of such things, because the trial would require only a few witnesses, probably mostly INS

employees. For the same reason he contends that there would be little inconvenience to the

court or waste of judicial resources. As to the assistance of counsel factor, defendant

complained that his counsel was not attentive, spent little time with him, and misinformed

him about the likely sentence. Defendant further contends that there was no delay in making

the motion. He had no cause to complain about his attorney’s performance before the

presentence report was belatedly received and he realized that his representation had been

inadequate. Justice would be served by allowing him to withdraw his plea, defendant finally

maintains, because the inadequacy of his attorney’s performance was combined with the

district court having made only cursory mention of the guidelines when the plea was entered,

thus leaving defendant substantially uninformed about the punishment he faced until the very

eve of sentencing.

On the other hand, the government points out that the district judge conducted an
- 6 -

appropriately thorough Rule 11 hearing before accepting defendant’s plea. The district judge

found that the plea was knowingly and voluntarily entered. Notwithstanding the cases cited

by defendant for the proposition that the motion to withdraw a plea is to be treated liberally,

the government argues that it still remains the defendant’s burden to show a fair and just

reason for the withdrawal. Carr, 80 F.3d at 419. See also United States v. Hyde, 117 S. Ct.

1630, 1634 (1997) (explaining importance of addition of “fair and just reason” showing

requirement to Rule 32(e), Fed. R. Crim. P.).

The government “concedes that there would have been little prejudice to the

government if the plea had been withdrawn, other than the usual inconvenience of having to

rearrange the calendar in order to reschedule the trial and ensure the availability of

witnesses.” Answer Brief of Plaintiff-Appellee at 9, n. 1. However, the government

contends that the other six relevant factors weigh against defendant. Mr. De La Cruz-Ramos

has never asserted his innocence, as is acknowledged by Appellant’s Opening Brief at 8. The

motion to withdraw the plea was made on the brink of sentencing. The lapse of time would

have caused prejudice to the court in having to try a case months after its original trial date

had passed. In addition, all the time spent at the plea and sentencing hearings by the judge

and other court personnel would have been wasted. Trial would be a waste of judicial

resources, the government contends, because its evidence is likely to be uncontroverted, in

light of the nature of the case. As for assistance of counsel, defendant expressed no

dissatisfaction with counsel until the presentence report came out; this suggests, in the
- 7 -

government’s view, that this is a case in which the defendant is unhappy with his sentence,

but “dissatisfaction with the length of a sentence is an insufficient reason to withdraw a

plea.” United States v. Gordon, 4 F.3d at 1571. 

We are not persuaded by defendant’s argument that the district court abused its

discretion. On this record, we conclude that defendant was primarily motivated by his

disappointment in the sentence recommended by the presentence report. For purposes of our

analysis, we accept as true defendant’s allegation that he was led to expect a lighter sentence.

However, we have held that “[a]lthough an attorney’s unfair representation of probable

leniency may be found coercive, an erroneous estimate of sentence does not render the plea

involuntary.” United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990). Cf. Wellnitz v.

Page, 420 F.2d 935, 936 (10th Cir. 1970) (in a federal habeas review of a state conviction,

this court stated that a reckless promise by counsel of a specific sentence for a plea of guilty

may raise a question of coercion; however, while counsel may offer a prediction on

sentence, “[a]n erroneous sentence estimate by defense counsel does not render a plea

involuntary.”). Rule 11 requires only that the maximum punishment be explained before

accepting a plea; it does not require any estimation of the guideline range. Here there is no

indication that the attorney’s miscalculation was so egregious as to be tantamount to coercing

the plea. The sentence is still well below the maximum punishment. Mr. De La Cruz-Ramos

has not asserted his innocence, nor has he suggested that he could have developed any viable

defense to the charges had his motion been granted.
- 8 -

III

In sum, defendant fails to show a fair and just reason for permitting his plea to be

withdrawn. We conclude that the district court did not abuse its discretion in denying

Mr. De La Cruz-Ramos’ motion to withdraw his plea of guilty. Accordingly, the judgment

and sentence are AFFIRMED.

Entered for the Court

William J. Holloway, Jr.

Circuit Judge