UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. No. 13-3241 (D.C. No. 2:09-CR-20143-CM-2) (D. Kan.) PAUL G. RAYFORD, Defendant - Appellant.

___________________ _________________ ORDER AND JUDGMENT *

___________________ _________________ Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges. **

___________________ _________________ This case presents two questions. First, di d the district court have jurisdiction to entertain Defendant Paul G. Ra yford’s motion to withdraw his guilty plea filed after the district court vacated his sentence under 28 U. S.C. § 2255 but before resentencing? If so, second, did the district court abuse its disc retion when it denied Defendant’s motion to withdraw his plea? We answer the first questi on with a “yes” and the second with a “no.”

* This order and judgment is not binding pr ecedent, except under th e doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howe ver, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs a nd appellate record, this pane l has determined unanimously to grant the parties’ request fo r a decision on the briefs with out oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1. The ca se therefore is ordere d submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### April 14, 2014 Elisabeth A. Shumaker Clerk of Court-2- As such, exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 1
I. A more detailed procedural history of this case can be found in United States v. Rayford, 496 F. A pp’x 767 (10th Cir. 2012). In short, Defendant pled guilty to multiple charges stemming from an attempted bank robb ery. Later, Defendant brought a habeas petition to vacate his sentence under 28 U.S.C. § 2255, which the district court denied. We reversed and “remand[ed] for the distri ct court to decide Defendant’s claim of ineffective assistance of counsel in the first instance.” Id. at 770. On remand, the district court found Defendant’s counsel was ineffec tive for failing to rais e a criminal-historycalculation error in Defendant’s Presentence Report. The district court accordingly granted Defendant’s § 2255 mo tion, vacated his sentence, a nd continued the matter for a new sentencing hearing. After his sentence had been vacated but before the new sentencing hearing, Defendant moved to withdraw his guilty plea under Fed. R. Crim. P. 11(d). He claimed he had recently learned police ha d installed a GPS on a stolen Buick that he drove to the location of the attempted bank robbery. He further claime d the Government suppressed this information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and he alleged a reasonable probability existed that he woul d not have entered th e plea but for the Government’s failure to produce this info rmation. The distri ct court asked the Government if any jurisdictional issues barred entertaining this motion, and the

1 Our jurisdiction over an appeal from a pr oceeding under § 2255 typically arises under 28 U.S.C. §2253; however, as we explain below, Defendant here directly appeals from the district court’s denial of his timely Ru le 11(d) motion to withdraw his guilty plea.-3- Government represented that no ne did. The district court then found that, because it had vacated Defendant’s sentence an d had not yet resent enced him, the motion to withdraw his guilty plea was timely under Rule 11(d)(2)(B). At the hearing on the motion to withdraw, th e evidence establishe d that agents had placed a slap-on GPS on the stolen Buick wh ile it was parked behi nd a residence owned by Defendant’s father. Defendant never lived at this residence, which was abandoned when the agents in stalled the device on the stolen Buick. Furthermore, on the date of the attempted robbery, the GPS device was not working properly and provided no usable data. Notwithstanding, agents were able to track the Buick because they had set up live surveillance on the residence where the Buick was parked. The district court concluded that, based on this evidence, Defendant faile d to show a “fair and just reason” for the withdrawal. In the same vein, the district court pointed out numerous fatal flaws in Defendant’s Brady claim; for ex ample, “[t]he GPS did not play any role in the arrest of the defendant,” and the Buick was stolen an d parked at an aban doned house not owned by Defendant so he “had no Fourth Amendmen t right in the car.” Defendant now appeals the denial of his motion to withdraw his guilty plea. II. First we must address the Governme nt’s jurisdictional argument. The Government argues for the first time on appeal that Defendant’s motion to withdraw his guilty plea is actually a “second or successive” § 2255 petition, and that Defendant must first obtain a certificate of appealability from this Court before the district court has-4- jurisdiction to entertain the motion. 2 Defendant on the other hand argues that when his sentence was vacated he stood in the position of one who had not yet been sentenced and, thus, his motion to withdraw was timely. Se e Fed. R. Crim. P. 11( d)(2)(B) (“A defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes

sentence if: . . . the defendant can show a fa ir and just reason for requesting the withdrawal.” (emphasis added)). On this point, we agre e with Defendant. In United States v. Moore, 83 F.3d 1231 (10th Cir. 1996), Moore filed a motion to vacate his sentence under 28 U.S. C. § 2255 based on ineffectiv e assistance of counsel. Id. at 1233. The district court found Moore’ s original counsel ine ffective for failing to perfect an appeal, and determined the prop er remedy was to vacate Moore’s sentence and resentence him so he could perfect an appeal. Before Moore was rese ntenced, he sought to introduce new evidence and make additional arguments concerning his offense level. The district court, however, “c oncluded that it had no jurisd iction or power to consider new evidence or expanded objections not pres ented at the original sentencing. The premise of this conclusion was that Moore was only entitled to be placed in the same position he woul d hold had his original coun sel perfected an appeal.” Id. On appeal, we rejected this premise and re versed the district court’s ruling on the nature of its jurisdiction at resentencing. Id . at 1235. We held instead th at “as a result of the district

2 Defendant argues the Gove rnment waived this issue below, and the Government concedes it represented below that the dist rict court had jurisdiction to adjudicate Defendant’s motion. But parties may not wa ive jurisdictional requirements. See Basso v. Utah Power & Light Co., 495 F.2d 906, 910 (10th Cir. 1974). We must therefore resolve the issue.-5- court’s vacation of Moore’s original senten ce, Moore at resentencing stood in the position of a defendant who had pleaded guilty to a charge ag ainst him, had originally briefed the sentencing issues, and was awaiting se ntence.” Id. Furthermore, we rejected the notion that a vacated sentence has any contin uing effect after being vacated. As such, we held the district court “erred when it held that the limited purpose of Moore’s original § 2255 motion correspondingly limited its ju risdiction in resentencing.” Id. As in Moore, the district court here gran ted Defendant’s § 2255 motion in part and accordingly vacated his senten ce. At that point, under Mo ore, Defendant’s original sentence had no continuing effe ct on him. Because Defenda nt’s original sentence had been vacated, he stood before th e district court as if he had not yet been sentenced. And because Defendant moved to withdraw his guilty plea before the district court sentenced him anew, Rule 11(d)(2)(B) pe rmitted the district court to entertain his motion. The Government’s reliance on cases such as Suggs v. United St ates, 705 F.3d 279 (7th Cir. 2013), is misplace d. In Suggs, for example, the defendant successfully challenged his sentence under § 2255 and, after his resentencing , filed a new § 2255 motion challenging his underlyi ng conviction. Id. at 281. Because the defendant in Suggs had already been resentenced when he challenged his conviction, the district court no longer had jurisdiction to entertain a motion to withdraw a guilty plea. See Fed. R. Crim. P. 11(e). Indeed, the Seventh Circuit has itself he ld, albeit in an unpublished opinion, that the district court had jurisd iction to entertain a defendant’s motion to withdraw his guilty plea after the district cour t vacated his original sentence under § 2255-6- but before it imposed a new sentence under then-Rule 32(d). See United States v. Schonback, 921 F.2d 278 (7th Cir. 1990) (unpublished) (Posner, J., on panel). III. We review the denial of a motion to withdraw a guilty plea for abuse of discretion “and will not reverse absent a showing that the court acted unjustly or unfairly.” United States v. Graves, 106 F.3d 342, 343 (10t h Cir. 1997) (internal quotations omitted). Pursuant to Rule 11(d), a de fendant who has not yet been sentenced may withdraw his guilty plea if he “can show a fair and just reas on” for doing so. We have held the district court should consider the following factors when determining whether a defendant has demonstrated a fair and just reason: “(1) whether the defendan t has asserted his innocence, (2) prejudi ce to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s a ssistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judici al resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). Defendant argues that under these factors he demonstrated a fair and just reason for the withdrawal of his plea agreement. We disagree. The district court properly applied the Gordon factors. Furthermore, the court correctly pointed out several fatal flaws in Defendant’s Brady claim. Accordingl y, we conclude the di strict court did not abuse its discretion when it denied Defenda nt’s motion to withdraw his guilty plea. 3

3 Defendant also argues these factors do not take into account the unique situation presented by an alleged Brady violation. Given the numerous fatal flaws in Defendant’s Brady claim, we fail to see why we sh ould treat this as a unique situation.-7- Upon review of the parties’ briefs a nd the entire appellate record, this court affirms the denial of Defendant’s motion to withdraw his guilty plea for substantially those reasons set out by the district cour t in open court on September 9, 2013. AFFIRMED. Entered for the Court,
Bobby R. Baldock United States Circuit Judge