* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JOSE AVILA-SANDOVAL,

Defendant - Appellant. No. 01-1448 (D.Ct. No. 00-CR-436-N) (D. Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Jose Avila-Sandoval appeals the district court’s denial of his motion to withdraw his guilty plea. We exercise ju risdiction under 28 U.S.C. §1 In early November 2000, Mr. Avila-Sandoval filed a motion for change of

counsel, alleging various grievances against his tr ial counsel; he reiterated his concerns at the November 16, 2000 status conference . During the status conference, the district court fully addressed the issue and denied his motion. However, the district court did appoint advisory co unsel, Mr. Boston Stanton, for the purpose of giving Mr. Avila-Sandoval a second o pinion. Mr. AvilaSandoval’s discontent with trial counsel was allevi ated by the time of his November 30, 2000 guilty plea. At the change-of-pl ea hearing, the district court repeatedly questioned Mr. Avila-Sandoval as to whether he was satisfied with both his trial counsel and advisory counsel. Mr. A vila-Sandoval clearly responded that he was satisfied with both. On Apri l 5, 2001, the district court granted trial counsel’s motion to withdraw as couns el, and appointed Mr. Boston Stanton. On August 24, 2001, the district court gr anted Mr. Avila-Sandoval’s -2- 1291, and affirm. On November 30, 2000, Mr. Avila-Sandoval pled guilty to one count of Conspiracy to Possess with Intent to Distribute Methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). In exch ange, the government dismissed four counts against Mr. Avila-Sandoval al leging Possession with Intent to Distribute Methamphetamine. The plea agreement provided that the statutory mandatory minimum sentence for the offense was 120 months, and predicted a guideline range of 108-135 months. Mr. Avila-Sando val was later sentenced to 121 months imprisonment and five years supervised r elease. On June 27, 2001, Mr. Avila-Sandoval, acting pro se , moved to withdraw his guilty plea, claiming it was not knowingly and voluntarily entered because counsel performed inadequately in apprising him of the propriety of pleading guilty. 1 On August 8, 2001, Mr. Avila-Sandoval, through hi s counsel, Mr. Bostonmotion to substitute counsel, and substituted Mr. J ohn Sullivan III as counsel.

Mr. Sullivan is Mr. Avila-Sandoval’s appellate coun sel. -3- Stanton, filed a motion to withdraw his guilty pleapursuant to Fed. R. Crim. P. 32(e), claiming he entered his plea under a mistake n belief he would receive a prison term of only forty-eight months. On Septemb er 4, 2001, through his counsel, Mr. John Sullivan III, Mr. Avila-Sandoval filed an addendum to his motion to withdraw his guilty plea, reiterating he entered the plea unknowingly and involuntarily based on the advice of counsel th at he would receive only fortyeight months imprisonment. On September 5, 2001, t he district court denied all motions to withdraw the plea and sentenced Mr. Avil a-Sandoval to 121 months imprisonment. A defendant does not have an absolute right to with draw a guilty plea. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000) (citing United States v. Rhodes , 913 F.2d 839, 845 (10th Cir. 1990), cert. denied, 498 U.S. 1122 (1991)). “If a motion to withdraw a plea of guilty . . . is made before sentence is imposed, the court may permit the plea to be withdr awn if the defendant shows any fair and just reason." Fed. R. Crim. P. 32(e) (2002). The defendant bears the burden of demonstrating a “fair and just reason” fo r the withdrawal of the plea. Siedlik, 231 F.3d at 748 (quotation marks and citations om itted). “We review the district court's denial of the motion to withdraw t he guilty plea for an abuse of-4-

discretion.” Id . We will not reverse absent a showing the distric t court acted unjustly or unfairly. United States v. Graves , 106 F.3d 342, 343 (10th Cir. 1997). Mr. Avila-Sandoval maintains he did not knowingly and voluntarily plead guilty because he was not adequately informed by co unsel as to the possible sentence, and he did not understand the process. T he record rebukes these arguments. First, there is absolutely no reason to believe Mr. Avila-Sandoval was misinformed by counsel as to the potential sentence he would receive. At the change-of-plea hearing, Mr. Avila-Sandoval indicate d he had read, understood, and had no questions regarding the terms of the ple a agreement, which specifically provided for a mandatory minimum sente nce of 120 months. Additionally, the court took care to inform Mr. Avi la-Sandoval, and he affirmatively recognized, that unless the governmen t filed a motion for downward departure, the mandatory minimum sentence for the o ffense was ten years (120 months), and if certain aggravating factors existed , the court could impose a life sentence. Mr. Avila-Sandoval indicated he understo od that if the court did not accept the government’s recommended sentence, or if he was otherwise dissatisfied with his sentence, he would have no ri ght to withdraw his plea of guilty. When given the chance to withdraw his pleaat the November 30, 2000 change-of-plea hearing, Mr. Avila-Sandoval elected not to do so. Finally, Mr.2 The terms of the original plea agreement are not in the record.

Nonetheless, at his change-of-plea hearing, Mr. Avi la-Sandoval agreed his trial counsel had informed him that the terms of the orig inal plea agreement were no longer available and the only plea agreement left w as for 120 months. -5- Avila-Sandoval’s argument concerning his expectatio n of a forty-eight-month sentence appears wholly disingenuous in light of th e fact that both he and his advisory counsel, Mr. Boston Stanton, admitted thatMr. Avila-Sandoval’s trial counsel had explicitly explained to him prior to en try of the plea that the original plea agreement for “a term of approximately forty-t hree months” was no longer available, and the only plea agreement left was fora minimum of 120 months. ROA, Vol. 3 at 26-27. 2 Mr. Avila-Sandoval’s second assertion, that his gui lty plea was unknowing and involuntary because he “was extremely confused as to the entire process,” is also without merit. His unsupported, self-serving, generalized claim of confusion is insufficient to overcome his apparent comprehens ion of the process, effortlessly demonstrated throughout the change-of- plea hearing. To the extent Mr. Avila-Sandoval claims confusion based on his ab ility to speak only Spanish, we find such an argument wanting. The record clear ly indicates Mr. AvilaSandoval was provided with an interpreter throughout the process, the plea agreement was translated into Spanish, and his tria l counsel at the change-of-plea hearing spoke Spanish.-6-

In addition to the above considerations, we look to the following seven factors in determining whether Mr. Avila-Sandoval s atisfied his burden of showing the district court acted unjustly or unfair ly in denying his motion to withdraw his plea: “(1) defendant's assertion of i nnocence; (2) resulting prejudice to the government; (3) defendant's delay in filing the withdrawal motion; (4) inconvenience to the court; (5) defendant's assista nce of counsel; (6) knowledge and voluntariness of the plea; and (7) resulting wa ste of judicial resources.”
Graves , 106 F.3d at 343 (citing United States v. Gordon , 4 F.3d 1567, 1572 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994)). Upon our thorough review o f the record and the parties’ briefs, it is apparent each one of these elements weighs in unfavorably for Mr. Avila-Sandoval. In his brief, Mr. Avila-Sandoval indicates that if the district court had granted his motion t o withdraw, he and his new counsel could have tried to negotiate a better plea . Mr. Avila-Sandoval has failed to indicate how a renegotiated plea agreement would be more favorable to him, or even why the government would be inclined to consid er renegotiating his plea. For the district court to grant a motion to withdraw a plea merely in order to satisfy a defendant’s hopes of negotiating a more f avorable plea agreement would be an impermissible waste of judicial resources. W e note Mr. Avila-Sandoval has made no assertion of innocence; nor is such a claim supported by the record. We conclude the district court did not act unjustly or unfairly, and therefore-7-

did not abuse its discretion in denying Mr. Avila-S andoval’s motion to withdraw his plea of guilty. Accordingly, we AFFIRM

.

Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge