NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

DAMIEN WILLIAMS, AKA Goldie

Cage, AKA Christopher Williams, 

Defendant-Appellant.

No. 16-10014

D.C. No. 2:13-cr-00414-HDM-PAL-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Submitted January 13, 2017** 

San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

Defendant Damien Williams appeals from his judgment after the district

court’s denial of his motion to withdraw his guilty plea. We have jurisdiction under

28 U.S.C. § 1291. We review the district court’s denial of Defendant’s motion to

FILED

FEB 02 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
withdraw his guilty plea for abuse of discretion, United States v. Yamashiro, 788

F.3d 1231, 1236 (9th Cir. 2015), and review “findings of fact supporting the

district court’s exercise of its discretion . . . for clear error.” United States v.

McTiernan, 546 F.3d 1160, 1166 (9th Cir. 2008). We affirm. 

A defendant may withdraw a guilty plea before sentencing if “the defendant

can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). An attorney’s failure to predict accurately a defendant’s sentence will

not constitute a “fair and just reason for requesting the withdrawal” unless the

attorney “grossly mischaracterized” the possible sentence and the defendant

demonstrates that this “plausibly could have motivated his decision to plead

guilty.” United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005); see also United

States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010). 

The district court did not clearly err in concluding that the sixty-four-month

difference between Defendant’s counsel’s predicted sentence of 111 months and

Defendant’s received sentence of 175 months did not rise to the level of a “gross

mischaracterization,” sufficient to constitute “a fair and just reason for requesting

the withdrawal” of Defendant’s plea. See Briggs, 623 F.3d at 729 (affirming the

denial of a defendant’s motion to withdraw his guilty plea when the defendant

expected a sentence of 200 months and received a sentence of 324 months); United

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States v. Garcia, 909 F.2d 1346, 1348–49 (9th Cir. 1990) (affirming the denial of a

defendant’s motion to withdraw his plea when the defendant expected a sentence

of eight years and received a sentence of over twenty years, reasoning, “it is well

established that an erroneous prediction by a defense attorney concerning

sentencing does not entitle a defendant to challenge his guilty plea.”). Defendant

was “aware that he faced a substantial term of incarceration,” Briggs, 623 F.3d at

729, and his ultimate sentence was still “well within . . . the statutory maximum.”

United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991). The district

court did not abuse its discretion in denying Defendant’s motion to withdraw his

guilty plea. 

We decline to address Defendant’s ineffective assistance of counsel claim.

See United States v. McKenna, 327 F.3d 830, 854 (9th Cir. 2003) (“Claims of

ineffective assistance of counsel are generally inappropriate on direct appeal.”). 

We are not persuaded by the additional arguments raised in Defendant’s pro

se supplement to counsel’s brief. Defendant’s sentence was not enhanced under the

residual clause of U.S.S.G § 4B1.2(a)(2), defeating his argument regarding the

applicability of Johnson v. United States, 135 S. Ct. 2551 (2015). His remaining

arguments also lack merit. 

AFFIRMED.

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