* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50225

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NANCY MALKIEWICZ,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. MO-95-CR-66-ALL

- - - - - - - - - -

December 20, 1996

Before REAVLEY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Nancy Malkiewicz appeals her guilty-plea conviction for use

of a facility of commerce in a murder for hire, in violation of

18 U.S.C. §§ 2, 1958(a). Malkiewicz contends that the district

court abused its discretion by denying her postjudgment motion

for reduction of sentence, or in the alternative, motion for new

trial based on her contentions that the Government breached the
No. 96-50225

- 2 -

plea agreement and, in the alternative, that her guilty plea was

not knowing and voluntary. The district court may not grant a 

reduction of sentence on this basis. Fed. R. Crim. P. 35(c). A

motion for new trial is not available to Malkiewicz because she

pleaded guilty. See United States v. Lewis, 921 F.2d 563, 564

(5th Cir. 1991). Malkiewicz’s postjudgment motion is therefore

construed as a motion for reconsideration. Id. 

It is doubtful that a guilty plea can be withdrawn by a

motion for reconsideration. See Fed. R. Crim. P. 32(e)(after

sentencing, a guilty plea can be withdrawn only by direct appeal

or a motion under 28 U.S.C. § 2255). Insofar as this appeal is

direct from the judgment of conviction, as distinct from the

denial of the motion for reconsideration, the request to withdraw

the plea was not made until after judgment. A direct appeal from

the judgment does not bring up the denial of the request to

withdraw the plea. 

Even if a guilty plea can be challenged in a motion for

reconsideration, the district court did not err in denying the

motion because the record does not support Malkiewicz’s theory of

breach of the plea agreement, and Malkiewicz’s guilty plea was

knowing and voluntary. See United States v. Garcia-Bonilla, 11

F.3d 45, 46 (5th Cir. 1993). 

Malkiewicz’s statements at her rearraignment reveal that she

knowingly and voluntarily entered the plea agreement and that she

understood its terms. After the terms of the agreement were
No. 96-50225

- 3 -

summarized, Malkiewicz told the district court, under oath, that

she understood the plea agreement, had discussed it with her

attorney, and that she agreed to its terms. R. 2, 6-11. The

district court specifically advised Malkiewicz that the

Government’s promised sentencing recommendations were nonbinding, that her punishment range could not be accurately

calculated at that time, that her sentence might exceed 12 years,

and that the statutory maximum sentence was 20 years. Id. at 9-

14. During the hearing on Malkiewicz’s postjudgment motion,

Malkiewicz testified that she had been aware that the district

court could have sentenced her up to 20 years and that she had

been aware that she had agreed not to withdraw her guilty plea if

the court did not accept the Government’s sentencing

recommendations. Id. Malkiewicz’s statements show that the

terms of Paragraph 13 did not lead her to believe that she was

subject to a term of imprisonment of 9-12 years. Because the

plea agreement was not ambiguous, Malkiewicz’s argument that her

guilty plea was involuntary must fail. The district court did

not commit error, plain or otherwise. 

AFFIRMED.