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The Honorable James B. Loken stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2010. He has been succeeded by the Honorable William Jay Riley.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1735

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Hector Manuel Avila-Luna, also known *

as Fernando Lopez, also known as * [UNPUBLISHED]

Manuel Arturo Avila-Luna, *

*

Defendant - Appellant. *

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Submitted: January 15, 2010

Filed: August 2, 2010

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Before LOKEN,1

 Chief Judge, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

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PER CURIAM.

Hector Manuel Avila-Luna pleaded guilty, pursuant to a plea agreement with

the government, to one count of conspiracy to distribute marijuana and

methamphetamine in violation of 21 U.S.C. § 841(b)(1)(A) and (b)(1)(C) and 21

U.S.C. § 846. He subsequently filed a motion to withdraw his guilty plea, which the
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The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

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district court2

 denied. The case proceeded to sentencing and Avila-Luna was

sentenced to life imprisonment, the applicable mandatory minimum based on his

previous felony drug convictions. This appeal followed. We affirm. 

I.

Avila-Luna appeals the district court’s denial of his motion to withdraw his

guilty plea. We review the district court’s denial of a motion to withdraw a plea of

guilty for abuse of discretion. United States v. Smith, 422 F.3d 715, 724 (8th Cir.

2005). “Whether [a guilty] plea was knowing and voluntary is a mixed question of

law and fact that is reviewed de novo.” Id. “Prior to sentencing, a defendant may

withdraw a guilty plea if he can show a fair and just reason for requesting the

withdrawal.” Id. If the defendant establishes a fair and just reason, then the “court

should also consider whether the defendant has asserted his innocence to the charge,

the length of time between the guilty plea and the motion to withdraw, and whether

the government will be prejudiced by the withdrawal.” United States v. Austin, 413

F.3d 856, 857 (8th Cir. 2005). “If a defendant fails to establish a fair and just reason

for withdrawing the guilty plea, the district court need not address the remaining

factors.” Smith, 422 F.3d at 724.

Our review of the record indicates that Avila-Luna’s plea was knowing and

voluntary. He was informed on several occasions that he faced a mandatory minimum

of life imprisonment, and he indicated that he understood the sentencing ramifications

of pleading guilty. With regard to the possibility that the government might file a

substantial assistance motion, the plea agreement signed by Avila-Luna stated:
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17. United States Attorney’s Motion. At the sole discretion of the

United States Attorney regarding the making of a motion, and upon

motion by the United States Attorney stating that Defendant has

provided substantial assistance in the investigation or prosecution of

another person who has committed an offense, the Court may depart

from Guidelines. The Defendant understands and agrees a proffer

interview or a debriefing statement is not, by itself, substantial assistance

to the government, and that a motion for downward departure will not be

filed until the defendant has fully completed the defendant’s cooperation.

Completion of defendant’s cooperation will be determined by the United

States Attorney’s office, in its sole discretion. 

These terms were reiterated at Avila-Luna’s plea hearing, and he specifically testified

that no promises other than those contained in the written plea agreement were made

to him.

Nonetheless, Avila-Luna argues that he should have been permitted to withdraw

his knowing and voluntary plea because the original prosecutor handling his case

became terminally ill and was unable to see the case through to sentencing. AvilaLuna cites no authority, and we find none, to support his argument that a change in the

prosecutor working the case serves as a “fair and just” reason to withdraw his plea.

Avila-Luna believes that he may have received a substantial assistance motion from

the government if the original prosecutor had remained involved. He also asserts that

the “new prosecutor . . . [was] too far removed from the subjective process of the

previous plea negotiations and unable to properly quantify and analyze the

defendant’s cooperation.” After several opportunities, Avila-Luna failed to provide

the government with the type of information that would warrant a substantial

assistance motion. Nothing in the record indicates that the government acted

unreasonably in its decision not to make a substantial assistance motion. Accordingly,

Avila-Luna failed to demonstrate a fair and just reason why he should be allowed to

withdraw his plea. 

The judgment of the district court is affirmed.

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