*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The 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 

### MAY 28 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GUILLERMO ZAMBRANO-SANCHEZ, Defendant-Appellant. No. 98-3227 (D. Kan.) (D.Ct. No. 97-CR-20067-01-EEO)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BALTAZAR ZAMBRANO-ZOMORA, Defendant-Appellant. No. 98-3283 (D. Kan.) (D.Ct. No. 97-CR-20067-EEO)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined-2-

unanimously that oral argument would not materiallyassist 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.

Appellant Baltazar Zambrano-Zomora appeals his conv iction for conspiracy to possess with intent to distribute methamphetamin e following the district court's denial of his motion to withdraw his guilty plea. In a related appeal concerning the same alleged conspiracy, Appellant Guillermo Za mbrano-Sanchez contests the extent of the district court's downward departure i n calculating his sentence after pleading guilty to possession with intent to distri bute a substance containing a detectable quantity of methamphetamine. We exercis e our jurisdiction to consolidate these appeals, and affirm.

I. Mr. Zambrano-Zomora: Appeal No. 98-3283 Mr. Zambrano-Zomora was indicted for conspiracy to possess with intent to distribute more than one kilogram of methamphetamin e in violation of 21 U.S.C. §§ 841 and 846. Two days prior to his May 4, 1998 trial, Mr. Zambrano-Zomora advised the government he wished to enter a plea of guilty. In his petition to enter a plea of guilty, Mr. Zambrano-Zomora describ ed his involvement in the offense, stating: "[I]n November, 1997, I particip ated in a conspiracy with others-3-

named in this Indictment to possess and distribute methamphetamine, in a quantity of more than 1 kilogram." During the pleahearing, Mr. ZambranoZomora stated his desire to withdraw his previous p lea of not guilty and enter a guilty plea, but disagreed with the government's re citation of the facts as to his involvement with the other conspirators. After his attorney requested and received a recess to confer with his client, Mr. Za mbrano-Zomora returned and completed the plea colloquy, admitting he did what the plea agreement stated.

At his July 20, 1998 sentencing, Mr. Zambrano-Zomor a advised the court he wanted a new attorney. The district court appoi nted new counsel and granted a continuance for the purpose of allowing Mr. Zambran o-Zomora to file motions. Several days later, Mr. Zambrano-Zomora filed a mot ion to withdraw his guilty plea.

The district court subsequently held a hearing on the motion to withdraw, at which Mr. Zambrano-Zomora testified he told the dis trict court at his plea hearing he did not participate in the conspiracy, but that during the recess, his attorney told him if he disagreed with the government’s reci tation of the facts, he could not plead guilty and receive the five to six and a half year sentence. He further stated his attorney told him he “could not go to tr ial” because people would-4-

testify against him and he might lose his case. Du ring the hearing colloquy, Mr. Zambrano-Zomora admitted he lied to government agents as to whether he knew several of the other conspirators.

Mr. Zambrano-Zomora's former attorney, Mr. Gyllenbo rg, also testified at the hearing, stating an interpreter translated the guilty plea petition into Spanish for Mr. Zambrano-Zomora, and Mr. Zambrano-Zomora ad mitted he wanted to plead guilty to his participation in the conspiracy . Mr. Gyllenborg testified he had no doubt in his mind Mr. Zambrano-Zomora unders tood the terms of the plea agreement and the facts to which he pled guilty, an d that he never coerced or threatened Mr. Zambrano-Zomora into entering the pl ea. He also explained that during the recess of the plea hearing, Mr. Zambrano -Zomora initially objected to the government's statement he participated in the f ull length of the conspiracy, but after explaining to Mr. Zambrano-Zomora that the go vernment only linked him to the final two months of the conspiracy, Mr. Zambran o-Zomora seemed satisfied and reiterated his desire to enter a guilty plea. In addition, Mr. Gyllenborg stated he advised Mr. Zambrano-Zomora of the maximum and m inimum sentence of life to ten years, but did not know why Mr. Zambrano-Zom ora thought his sentence would range between only five to six and a half yea rs, other than an earlier discussion they had about the possibility of a departure under United States-5-

Sentencing Guideline 5K1.1 if he cooperated with th e government.

Following the hearing, the district court entered aMemorandum and Order denying Mr. Zambrano-Zomora’s motion to withdraw hi s guilty plea, finding he knowingly and intelligently entered his plea and th at he failed to demonstrate a "fair and just reason" for withdrawal of his guiltyplea. The district court rejected Mr. Zambrano-Zomora's argument that his mistaken be lief that he would receive a five to six and a half year sentence should negate his plea. The court based this decision on Mr. Gyllenborg's unequivocal testimony that he did not advise Mr. Zambrano-Zomora he would receive a five to six and a half year sentence, Mr. Zambrano-Zomora’s lack of credibility based on his admission he initially lied to federal agents, and the fact that the district court informed Mr. Zambrano-Zomora during the plea hearing that his sentence could ran ge from ten years to life. The district court also determined Mr. Zambrano-Zomora failed to rebut the presumption of the veracity of his declaration of g uilt in open court during his plea hearing, especially in light of Mr. Gyllenborg 's clear and credible testimony that he did not coerce or threatened him to plead g uilty. Finally, the district court found withdrawal of the plea would prejudice the go vernment, inconvenience the court, and waste judicial resources. Mr. Zambrano- Zomora was ultimately sentenced to 151 months in prison.-6-

On appeal, Mr. Zambrano-Zomora asserts the districtcourt abused its discretion by not allowing him to withdraw his guil ty plea. He argues he asserted his innocence at his plea hearing and only agreed t o plead guilty because he thought he would receive a five to six and a half y ear sentence. For the same reason, he claims his plea was not knowing and volu ntary. He also claims his motion to withdraw his plea and proceed to trial ca used the government no prejudice, would result in no unreasonable delay, and would cause no inconvenience to the court. Moreover, he asserts the interests of justice outweigh any waste of judicial resources.

Under Fed. R. Crim. P. 32(e), "[i]f a motion to wit hdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fai r and just reason." We review the denial of such a motion for an abuse of discret ion, and we will not reverse unless Mr. Zambrano-Zomora can show the district co urt acted unjustly or unfairly. United States v. Gordon , 4 F.3d 1567, 1572-73 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994). In determining if Mr. Zamb rano-Zomora has shown "fair and just reason" for allowing withdrawa l of a guilty plea, we must consider several factors, including: (1) whether M r. Zambrano-Zomora asserted his innocence; (2) prejudice to the government if h is motion is granted; (3)-7-

whether he delayed filing the motion; (4) inconveni ence to the court if his motion is granted; (5) the assistance of counsel during th e plea; (6) whether his plea was knowing and voluntary; and (7) the waste of judicia l resources. Gordon , 4 F.3d at 1572.

We find Mr. Zambrano-Zomora’s claims that his motio n to withdraw his guilty plea would cause no prejudice to the governm ent, undue delay, or inconvenience to the court are unpersuasive. The r ecord shows Mr. ZambranoZomora waited until only two days before his trial to change his plea to guilty. The government and defense counsel were ready May 4 , 1998 to commence the trial; jury members waited while the government ens ured the conspiracy members, including Mr. Zambrano-Zomora, entered their guiltypleas; and numerous witnesses were subpoenaed and prepared to testify. Mr. Zambrano-Zomora then waited two months until the morning of his sentenci ng before asking for a continuance, and several days later finally filed h is motion to withdraw his plea. This chain of events evidences at least some prejud ice to the government, inconvenience to the court, and waste of judicial r esources.

In addition, a review of the record, including the transcript of Mr. Zambrano-Zomora's plea hearing, his petition to ent er a plea of guilty, and his-8-

plea agreement, convinces us that his plea was know ing and intelligent. Giving great deference to the district court’s firsthand r eview of the testimony and its credibility determination, see United States v. Gobey , 12 F.3d 964, 967 (10th Cir. 1993), we agree that Mr. Gyllenborg did not coerce a guilty plea through his advice prior to and during the plea hearing. Even if Mr. Gyllenborg incorrectly estimated the sentence at five to six and one half years, his erroneous estimation is insufficient for Mr. Zambrano-Zomora to withdrawhis guilty plea. The record shows Mr. Zambrano-Zomora was well aware of the ran ge of his sentence after the district court advised him of the maximum and m inimum sentence for the crime charged prior to his plea. See United States v. Peebles , 80 F.3d 278, 279 (8th Cir. 1996). Although Mr. Zambrano-Zomora beli eves his sentence should be five to six and one half years, "dissatisfaction wi th the length of a sentence is an insufficient reason to withdraw a plea." Gordon , 4 F.3d at 1573. For these reasons, we concluded the district court did not ac t unjustly or unfairly in denying Mr. Zambrano-Zomora's motion to withdraw his plea.

II. Mr. Guillermo Zambrano-Sanchez: Appeal No. 98-3227 In the other consolidated appeal concerning the sam e conspiracy, Mr. Zambrano-Sanchez challenges his 108-month sentence imposed after he pled guilty to possession with intent to distribute a su bstance containing a detectable1 See Anders v. California , 386 U.S. 738, 744 (1967) (requiring counsel who finds

an appeal to be wholly frivolous, to advise the court, request permission to withdraw, and provide an accompanying brief referring to anything in the record that might arguably support the appeal). Accordingly, Mr. Zambrano-Sanchez' attorney filed a motion to withdraw after determining this appeal is frivolous and filing the appeal brief. (Motion to Withdraw dated 2/18/99.) We grant counsel's motion to withdraw.

-9- quantity of methamphetamine in violation of 21 U.S. C. § 841(a)(1). Mr. Zambrano-Sanchez, through his attorney's Anders ' brief, 1 disputes the extent of the district court's downward departure under U.S.S .G. § 5K1.1. He claims the district court did not go far enough in departing d ownward two levels from the applicable guideline sentencing range of 135 to 168 months.

Mr. Zambrano-Sanchez provided assistance to the gov ernment by talking with its agents and agreeing to testify concerning a phone call made from a motel room shortly before his arrest December 1, 1997. T his testimony was extremely helpful in the case against one of the co-defendant s and may have influenced the remaining co-defendants to plead guilty, thereby el iminating the need for a lengthy and complicated trial. As a result, the go vernment moved for a downward departure of two levels, which the district court g ranted.

A district court may depart from the Sentencing Gui delines on a motion by the government stating the defendant "provided subs tantial assistance in the-10-

investigation or prosecution of another person who has committed an offense." U.S.S.G. § 5K1.1. It is well established that we l ack jurisdiction to review the district court's discretionary decision to grant a downward departure under U.S.S.G. § 5K1.1. This principle applies equally t o the extent of that departure. See United States v. McHenry , 968 F.2d 1047, 1049 (10th Cir. 1992). Thus, we lack jurisdiction to review Mr. Zambrano-Sanchez's claim concerning the extent of the district court's departure.

For these reasons, we AFFIRM the conviction and sentence in both appeals.

Entered by the Court: WADE BRORBY United States Circuit Judge