An erroneous prediction by defense counsel regarding the length of a sentence does not entitle a defendant to challenge a guilty plea.
A defendant convicted of conspiracy to distribute cocaine appeals the denial of his motion to withdraw his guilty plea and the application of a sentencing enhancement for a co-conspirator's possession of a firearm. The court holds that an erroneous prediction by defense counsel regarding the length of a sentence does not entitle a defendant to challenge a guilty plea. Regarding the enhancement, the court applies the Sentencing Guidelines provision that a defendant is accountable for the conduct of others in furtherance of the conspiracy if that conduct was reasonably foreseeable. Because the large quantity of drugs involved made the co-conspirator's possession of a loaded firearm reasonably foreseeable, the district court did not clearly err in attributing that possession to the defendant. The court affirms the judgment.
At page 1349 Reviewing firearm possession enhancement for conspiracy conduct76 citing casesissue was whether- co-conspirator’s firearm was connected with the offense
- United States v. Llausas-Silva, No. 23-3549 (9th Cir. Jan. 21, 2025).unpublishedWe reject his challenge. “[A] defendant convicted of conspiracy may be sentenced not only on the basis of his own conduct, but also on the basis of the ‘conduct of others in furtherance of the execution of the jointly- undertaken criminal…
- United States v. Sedric Williams, 434 F. App'x 585 (9th Cir. 2011).unpublished“Under the Guidelines, a defendant convicted of conspiracy may be sentenced not only on the basis of his own conduct, but also on the basis of the ‘conduct of others in furtherance of the execution of the jointly-undertaken criminal activi…
- United States v. Ruben Ultreras, 360 F. App'x 799 (9th Cir. 2009).unpublishedUnited States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990).
- United States v. Frias-Cobos, 349 F. App'x 171 (9th Cir. 2009).unpublished United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990).
- United States v. Noriega-Valenzuela, 317 F. App'x 655 (9th Cir. 2009).unpublished (possession of a weapon by a co-conspirator, in close proximity to drugs, is sufficient for a sentencing enhancement as long as such possession was reasonably foreseeable by the defendant)
- United States v. Johnson, 261 F. App'x 969 (9th Cir. 2007).unpublishedSee U.S.S.G. § 2D1.1(b)(2); United States v. Lopez-Sandoval, 146 F.3d 712, 715-16 (9th Cir.1998); United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990).
- United States v. Ross, 149 F. App'x 670 (9th Cir. 2005).unpublishedSee United States v. Lavender, 224 F.Sd 939, 941-42 (9th Cir. 2000) (district court did not err in adjusting defendant’s sentence based on coconspirator’s use of a weapon during commission of the offense); United States v. Garcia, 909 F.2d…
- United States v. Ross, 146 F. App'x 146 (9th Cir. 2005).unpublishedSee United States v. Lavender, 224 F.3d 939, 941-42 (9th Cir.2000) (district court did not err in adjusting defendant’s sentence based on co-conspirator’s use of a weapon during commission of the offense); United States v. Garcia, 909 F.2d…
- United States v. Gaines, 8 F. App'x 635 (9th Cir. 2001).unpublishedUnited States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th Cir.1998); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990).
- United States v. Anthony Bernard Washington, 145 F.3d 1343 (9th Cir. 1998).unpublished(codefendant's possession of firearm foreseeable given extended preparation involved in drug transaction and quantity of drugs)
Show 62 more citing cases
- United States v. Scottie Lee ZELAYA, 114 F.3d 869 (9th Cir. 1997).published (cohort’s possession of gun during drug transaction foreseeable because of the amount of drugs involved and the length of negotiations leading up to the transaction)
- United States v. Adrian Parra Cazares, United States of Am. v. Francisco Alvarez-Sanchez, (Two Cases), 112 F.3d 1391 (9th Cir. 1997).published(issue was whether co^eonspirator’s firearm *1396 was connected with the offense)
- United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997).published(issue was whether- co-conspirator’s firearm was connected with the offense)
- United States v. Ernesto Arrollo-Ariola, 104 F.3d 366 (9th Cir. 1996).unpublished We review for clear error the district court's factual finding that Arrollo-Ariola possessed a gun and was a leader or organizer, United States v. Fagan, 996 F.2d 1009, 1016 (9th Cir.1993); United States v. Garcia, 909 F.2d 1346, 1349 (9th…
- United States v. Jose Oscar Rodriguez, 97 F.3d 1462 (9th Cir. 1996).unpublished See U.S.S.G. § 2D1.1(b)(1); 1B1.3(a)(1), comment n. 1.; 1B1.3(a)(2) (1990); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990). 5 Here, Rodriguez was directly involved in a major drug sale during which three co-conspirators were a…
- United States v. Johnny Horton Weekes, United States of Am. v. Lori Weekes, United States of Am. v. Amy Wendell Rice, United States of Am. v. Tim Weekes, 95 F.3d 1160 (9th Cir. 1996).unpublishedUnited States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990).
- United States v. Tomas Huerta, 70 F.3d 1281 (9th Cir. 1995).unpublishedU.S. v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990).
- United States v. Carlos Enrique Gomez-Acedo, 61 F.3d 913 (9th Cir. 1995).unpublishedUnited States v. Flores-Payon, 942 F.2d 556, 561-62 (9th Cir. 1991); United States v. Stewart, 926 F.2d 899, 900-01 (9th Cir. 1991); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990).
- United States v. Luke Jernigan, 56 F.3d 74 (9th Cir. 1995).publishedUnited States v. Willis, 899 F.2d 873, 874 (9th Cir. 1990); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990). 13 In Garcia, we held that the co-defendant's possession of a gun, which was hidden under a floor mat of the co-defen…
- United States v. Jose De Jesus Martinez-Cano, 50 F.3d 17 (9th Cir. 1995).unpublished United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir.1990).
- United States v. Dary Ray Adway, 46 F.3d 1146 (9th Cir. 1995).unpublished Sec. 1B1.3(a)(1)(B); United States v. Garcia, 909 F.2d 1346, 1349 (9th Cir. 1990). 5 The district court did not clearly err in finding that Adway could reasonably foresee that his co-participant, "T", would physically restrain a bank guard…
- United States v. Jose Yeste, 399 F. App'x 309 (9th Cir. 2010).unpublished
- United States v. Amado Maldonado, 419 F. App'x 746 (9th Cir. 2011).unpublished
- United States v. Juan Lomas Jr., 433 F. App'x 514 (9th Cir. 2011).unpublished
- Mark W. Chichakly v. United States, 926 F.2d 624 (7th Cir. 1991).published
- United States v. Buddy Lee Goddard, 929 F.2d 546 (10th Cir. 1991).published
- United States v. Mark Wayne Kelso, 942 F.2d 680 (9th Cir. 1991).published
- United States v. Schremser, 942 F.2d 795 (9th Cir. 1991).unpublished
- United States v. Kathleen Rebecca Kiba, United States of Am. v. Stephen George Kiba, 951 F.2d 364 (9th Cir. 1992).unpublished
- United States v. John M. Mateo, United States of Am. v. David Allen Nichols, 953 F.2d 1389 (9th Cir. 1992).unpublished
- United States v. Jeffrey Morales, 955 F.2d 48 (9th Cir. 1992).unpublished
- United States v. Mario Ray Soto, 959 F.2d 1181 (2d Cir. 1992).published
- United States v. Maria Avila, 960 F.2d 152 (9th Cir. 1992).unpublished
- United States v. Salvador Rios, Jr., United States of Am. v. Rene Perales, 960 F.2d 153 (9th Cir. 1992).unpublished
- United States v. James Dannals, United States of Am. v. David Beland, 963 F.2d 380 (9th Cir. 1992).unpublished
- United States v. Jaime Gurrola Madrid, United States of Am. v. Cesar Cazarez-Payan, United States of Am. v. Alejos Juan Avalos, 963 F.2d 381 (9th Cir. 1992).unpublished
- United States v. John Paul Boyd, 967 F.2d 592 (9th Cir. 1992).unpublished
- United States v. Gabriel Jaime Jaramillo-Ochoa, United States of Am. v. Albaro Cano, 967 F.2d 594 (9th Cir. 1992).unpublished
- United States v. Pedro Parra-Gonzalez, 967 F.2d 594 (9th Cir. 1992).unpublished
- United States v. Juvenal Martinez Perez, 967 F.2d 595 (9th Cir. 1992).unpublished
- United States v. Enrique Pimental-Reyes, 967 F.2d 595 (9th Cir. 1992).unpublished
- United States v. James Sanford Flack, United States of Am. v. Steven Batts, United States of Am. v. Gary Jerome Foster, United States of Am. v. Michael Norman Zivich, United States of Am. v. Donald Eugene Bates, 968 F.2d 1221 (9th Cir. 1992).unpublished
- United States v. Lonny Eugene Hadley, 977 F.2d 592 (9th Cir. 1992).unpublished
- United States v. Jose Moreira, 979 F.2d 856 (9th Cir. 1992).unpublished
- United States v. Julian Delgado, 981 F.2d 1260 (9th Cir. 1992).unpublished
- United States v. Aji Ashley, 983 F.2d 1077 (9th Cir. 1992).unpublished
- United States v. Sebastian Ramirez, United States of Am. v. Leopoldo Manzo-Garcia, United States of Am. v. Perry Wagner, 983 F.2d 1079 (9th Cir. 1993).unpublished
- United States v. Constantino Mierss-Vasquez, 983 F.2d 1079 (9th Cir. 1993).unpublished
- United States v. Roberto Serrano-Contreras, 983 F.2d 1079 (9th Cir. 1992).unpublished
- United States v. Kenneth Lee Beaty, 990 F.2d 1261 (9th Cir. 1993).unpublished
- United States v. Robert Parker, 990 F.2d 1264 (9th Cir. 1993).unpublished
- United States v. Teresa Darlene Wooten, 990 F.2d 1266 (9th Cir. 1993).unpublished
- United States v. Christopher Billings, 999 F.2d 544 (9th Cir. 1993).unpublished
- United States v. Jesus Raul-Cruz, 469 F. App'x 533 (9th Cir. 2012).unpublished
- United States v. Antonio Garcia Alfaro, United States of Am. v. Jose Luis Martinez, 8 F.3d 30 (9th Cir. 1993).unpublished
- United States v. Alfonso Ramon Diaz, 9 F.3d 1554 (9th Cir. 1993).unpublished
- Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Pub. Are Not Precedential & Should Not Be Cited Except When Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel. United States of Am. v. Renee Lynn White, AKA Renee Lynn Vickery, United States of Am. v. Robert Vickery, United States of Am. v. Mark Douglas Pirtle, 12 F.3d 1110 (9th Cir. 1993).unpublished
- United States v. Tammy Cutwright, 16 F.3d 1221 (6th Cir. 1994).published
- United States v. Tony Biddles, 21 F.3d 1116 (9th Cir. 1994).unpublished
- United States v. Raul Flores Medina, 28 F.3d 109 (9th Cir. 1994).unpublished
- United States v. Larry Kenneth Gardner, 32 F.3d 573 (9th Cir. 1994).unpublished
- United States v. Freddie Lee Brown, United States of Am. v. Antoine Lemorre Phillips, 35 F.3d 572 (9th Cir. 1994).unpublished
- United States v. Kim LIPSEY, 62 F.3d 1134 (9th Cir. 1995).published
- United States v. Armando Bejar, 122 F.3d 1074 (9th Cir. 1997).unpublished
- United States v. Gregory Barrington Pringle, United States of Am. v. Duane Delcomber, 122 F.3d 1075 (9th Cir. 1997).unpublished
- United States v. Demetrius Marie Crook, 124 F.3d 213 (9th Cir. 1997).unpublished
- United States v. Edmond, 746 F. Supp. 200 (D.D.C. 1990).published
- United States v. Topete-Hernandez, 30 F. App'x 745 (9th Cir. 2002).unpublished
- United States v. Nunez-Rosas, 66 F. App'x 748 (9th Cir. 2003).unpublished
- United States v. Mitchell, 336 F. App'x 613 (9th Cir. 2009).unpublished
- United States v. Castaneda, 337 F. App'x 678 (9th Cir. 2009).unpublished
- United States v. Salmoran-Sanchez, 281 F. App'x 688 (9th Cir. 2008).unpublished
At page 1348 Miscalculation of guideline sentence does not permit plea withdrawal42 citing cases“it is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.”
- United States v. Lewellyn Cox, IV, No. 14-50325 (9th Cir. Dec. 26, 2018).unpublished([I]t is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.)
- United States v. Wei Lin, No. 19-10032 (9th Cir. Oct. 22, 2020).unpublished ([I]t is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.)
- Waters, No. 1:25-cv-00355 (D. Idaho July 1, 2026).Furthermore, an erroneous sentence prediction “does not entitle a defendant to challenge his guilty plea.” United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990).
- United States v. Joshua Louis Rupp, No. 22-1240, 2023 WL 370908 (6th Cir. Jan. 24, 2023).unpublishedDavis, 796 F. App’x at 890 (quoting Stout v. United States, 508 F.2d 951, 953 (6th Cir. 1975)); see also, e.g., United States v. Patterson, 576 F.3d 431, 438 (7th Cir. 2009); United States v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (per…
- United States v. Damien Williams, 678 F. App'x 467 (9th Cir. 2017).unpublished(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…)
- United States v. Richard Maize, 500 F. App'x 705 (9th Cir. 2012).unpublishedAn attorney’s “erroneous sentencing prediction ... does not entitle a defendant to withdraw his guilty plea,” United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir.1991) (citing United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.…
- United States v. Gillilland, 340 F. App'x 412 (9th Cir. 2009).unpublished United States v. Davis, 428 F.3d 802, 805 (9th Cir.2005); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.1990).
- United States v. Lee, 325 F. App'x 565 (9th Cir. 2009).unpublished Indeed, Davis does not overrule the well-established principle that an “erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.” United States v. Garcia, 909 F.2d 1346, 13…
- United States v. Alvarado, 622 F. Supp. 2d 988 (E.D. Cal. 2009).publishedFor example, while the Ninth Circuit has held that, generally, an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to withdraw his plea (United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 19…
- United States v. Sabrina-Rodriguez, 130 F. App'x 169 (9th Cir. 2005).unpublished(finding that counsel’s erroneous prognostication that a guilty plea would result in a sentence of no more than eight years, and actual sentence imposed was 235 months or approximately 19 years did not warrant withdrawal…)
Show 28 more citing cases
- United States v. Creighton, 52 F. App'x 31 (9th Cir. 2002).unpublishedIn addition, we have repeatedly held that “an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.” United States v. Michlin, 34 F.3d 896, 899 (9th Cir.1994) (citations…
- United States v. Penn-Harris, 32 F. App'x 412 (9th Cir. 2002).unpublishedSee Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990); United States v. Garcia, 909 F.2d 1346,1348 (9th Cir.1990).
- United States v. Cheung, 10 F. App'x 522 (9th Cir. 2001).unpublishedUnited States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.1990).
- United States v. Scott Leone West, 145 F.3d 1343 (9th Cir. 1998).unpublishedWest's claim that his attorney misinformed him about the length of sentence he would receive is unavailing because this circuit has consistently held that "an erroneous prediction by a defense attorney concerning sentencing does not entitl…
- United States v. Craig Anthony Carrington, 132 F.3d 40 (9th Cir. 1997).unpublishedWe rejected the claim, noting that "an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea." Id. at 899 (quoting United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.1…
- United States v. Gary Jerome, 124 F.3d 214 (9th Cir. 1997).unpublishedThis court has held that "an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea." United States v. Michlin, 34 F.3d 896, 899 (9th Cir.1994) (quoting United States v. G…
- United States v. Ramon Dario Torres-Angulo, 51 F.3d 284 (9th Cir. 1995).unpublishedSee United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir.1991); United States v. Garcia, 909 F.2d 1346, 1348-49 (9th Cir.1990).
- United States v. Julio Acosta-Lopez, 46 F.3d 1145 (9th Cir. 1995).unpublished See United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990); cf. Iaea, 800 F.2d at 864-65 (when information given by counsel to his client is clearly erroneous under…
- United States v. Jose Fiallo-Lopez, 39 F.3d 1189 (9th Cir. 1994).unpublishedUnited States v. Garcia, 909 F.2d 1346, 1348 (9th Cir.1990); see United States v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir.1991).
- United States v. Gonzalez Vazquez, 34 F.3d 19 (1st Cir. 1994).publishedIt is a corollary of this principle that, as we recently stated in a case comparable to this one, “the fact that a defendant misapprehends the likely guideline sentencing range does not constitute a fair and just reason for withdrawing a g…
- United States v. Charles Zweber, United States of Am. v. Jerry Allen Hudson II, 913 F.2d 705 (9th Cir. 1990).published
- United States v. Hector Figueroa, 943 F.2d 55 (9th Cir. 1991).unpublished
- United States v. James H. Matlock, 952 F.2d 1400 (9th Cir. 1992).unpublished
- United States v. Virginia C. Lange, 963 F.2d 380 (9th Cir. 1992).unpublished
- United States v. Levi Keith Jones, United States of Am. v. Jeanette Allbritten, United States of Am. v. Charles Steel, 968 F.2d 1222 (9th Cir. 1992).unpublished
- United States v. Michael Patrick Greiner, 972 F.2d 1345 (9th Cir. 1992).unpublished
- United States v. Philip Walsh, 977 F.2d 594 (9th Cir. 1992).unpublished
- United States v. Salvador Casteneda-Abarca, 990 F.2d 1261 (9th Cir. 1993).unpublished
- United States v. Ramon Alvarez, 999 F.2d 544 (9th Cir. 1993).unpublished
- United States v. Shirley F. Crowell, United States of Am. v. Alan Julian, United States of Am. v. Lora G. Horner, United States of Am. v. Barbara Ellen Burrell, United States of Am. v. Annie Varner Reomer, 12 F.3d 1109 (9th Cir. 1993).unpublished
- United States v. Jomar Michlin, United States of Am. v. Rahsaan Walker, 34 F.3d 896 (9th Cir. 1994).published
- United States v. Heriberto Farias-Torres, United States of Am. v. Maria Anita Orozco-Aguilar, United States of Am. v. Jose Gonzalez-Salas, AKA Jose Orozco, 35 F.3d 572 (9th Cir. 1994).unpublished
- United States v. Rafael Ortiz-Caballero, 51 F.3d 283 (9th Cir. 1995).unpublished
- Womack v. Del Papa, 497 F.3d 998 (9th Cir. 2007).published
- United States v. Burger, 773 F. Supp. 289 (D. Kan. 1991).published
- United States v. Michael Kiper, No. 17-10208 (9th Cir. Jan. 31, 2019).unpublished
- United States v. Francisca Gamboa, 946 F.3d 548 (9th Cir. 2019).published
- United States v. Menjivar-Amaya, 220 F. App'x 673 (9th Cir. 2007).unpublished
At page 1350 Foreseeability of co-conspirator's firearm possession for sentencing22 citing cases“the drug transaction involved approximately 17 kilograms of cocaine, and the negotiations leading up to the sale lasted nearly one month.”
- United States v. Fausto Diaz-Lozano, 674 F. App'x 702 (9th Cir. 2017).unpublished Moreover, unlike in United States v. Garcia, 909 F.2d 1346, 1350 (9th Cir. 1990), in which the defendant was present with co-conspirators in a vehicle in which a gun was hidden during the relevant drug transaction, there is no evidence tha…
- United States v. Marco Chavez, 503 F. App'x 494 (9th Cir. 2012).unpublishedUnited States v. Garda, 909 F.2d 1346, 1350 (9th Cir.1990).
- United States v. Billy Glover, Jr., 112 F.3d 517 (9th Cir. 1997).unpublishedSee id.; United States v. Garcia, 909 F.2d 1346, 1350 (9th Cir.1990); United States v. Willis, 899 F.2d 873 (9th Cir.1990). 6 United States v. Pinkney, 15 F.3d 825 (9th Cir.1994), to the extent it is still good law after United States v. W…
- United States v. Patriarca, 912 F. Supp. 596 (D. Mass. 1995).publishedSee United States v. Lanni, 970 F.2d 1092, 1093, 1095 (2d Cir.1992); United States v. Tisdale, 952 F.2d 934, 938 (6th Cir.1992); United States v. Martinez, 987 F.2d 920, 925-26 (2d Cir.1993); United States v. Perrone, 936 F.2d 1403, 1416 (…
- United States v. Schremser, 942 F.2d 795 (9th Cir. 1991).unpublished
- United States v. Freddie Lee Brown, United States of Am. v. Antoine Lemorre Phillips, 35 F.3d 572 (9th Cir. 1994).unpublished
- United States v. Gregory Barrington Pringle, United States of Am. v. Duane Delcomber, 122 F.3d 1075 (9th Cir. 1997).unpublished
- United States v. Edmond, 746 F. Supp. 200 (D.D.C. 1990).published
- United States v. San Vidal G. Barragan, 915 F.2d 1174 (8th Cir. 1990).published
- United States v. Nicholas Bianco, United States of Am. v. Daniel Thomas Feeney, 922 F.2d 910 (1st Cir. 1991).published
Show 10 more citing cases
- United States v. Phillip Tsipai, United States of Am. v. Kenneth F. Nelson, United States of Am. v. David Nelson, 967 F.2d 595 (9th Cir. 1992).unpublished
- United States v. Frank Noriega, 990 F.2d 1264 (9th Cir. 1993).unpublished
- United States v. Darryl Bruce Needham, 2 F.3d 1159 (9th Cir. 1993).unpublished
- United States v. Maurice Martel Johnson, 67 F.3d 309 (9th Cir. 1995).unpublished
- United States v. Humberto Estrada-Bombela, Defendant-Appelant. United States of Am. v. Jose Sigala-Lomeli, 131 F.3d 149 (9th Cir. 1997).unpublished
- State v. Bridges, 628 A.2d 270 (N.J. 1993).published
- United States v. Saul Morales, 680 F. App'x 548 (9th Cir. 2017).unpublished
- United States v. Paluch, 84 F. App'x 740 (9th Cir. 2003).unpublished
- United States v. Alvarez-Sanchez, 300 F. App'x 587 (9th Cir. 2008).unpublished
- United States v. Hernandez, 304 F. App'x 486 (9th Cir. 2008).unpublished
v.
Miguel GARCIA, Defendant-Appellant
Appellant Miguel Garcia, who pled guilty to conspiracy to distribute cocaine, appeals both the district court’s refusal to allow him to withdraw his guilty plea, as well as the enhancement of his sentence under the United States Sentencing Commission[*1348] Guidelines Manual (“Guidelines”). We affirm.
FACTS
On September 22, 1988 Garcia met with an undercover officer from the Drug Enforcement Agency in order to conclude the sale of approximately 17 kilograms of cocaine. Garcia arrived at that meeting seated in the right rear passenger seat of a car driven by co-defendant Juan Soto. When the undercover agent asked to see the cocaine, Soto opened the trunk of the car where the 17 kilograms of cocaine were stored. Garcia- and another codefendant, Fernando Hernandez, were present when Soto opened the trunk. Garcia, Soto, and Hernandez were then arrested. On the day following Garcia’s and his co-conspirators’ arrests, agents searched Soto’s car and found a loaded .38 caliber handgun under the front floormat next to the transmission tunnel by the driver’s seat.
Garcia was charged in a two-count indictment with conspiracy to distribute cocaine, and with possession of cocaine with intent to distribute. Pursuant to a written plea agreement, he entered a plea to Count One of the indictment, admitting that from about August 26, 1988 through September 22, 1988 he conspired with Juan Soto and Fernando Hernandez to distribute approximately 20 kilograms of cocaine. In exchange for this plea, the government agreed to dismiss Count Two and recommend that Garcia receive credit for acceptance of responsibility under the Guidelines and that he be sentenced within the lower end of the applicable range. The parties did not attempt to calculate Garcia’s sentence in the plea agreement, and he acknowledged in the agreement that he understood that the sentencing judge was free to impose the maximum penalty of life imprisonment and a $4,000,000 fine.
On the date set for sentencing, Garcia moved to withdraw his guilty plea on the ground that his counsel, since deceased, had miscalculated his guideline sentence. Garcia claimed that his lawyer had told him that if he pled guilty, he would serve no more than eight years. The lawyer also allegedly told Garcia that if he were convicted in a jury trial, he would be sentenced to thirty years. Garcia’s motion to withdraw his guilty plea was denied.
He then filed an objection to the presen-tence report which recommended an upward adjustment in Garcia’s offense level for possession of a weapon during the commission of a drug offense based on a co-conspirator’s possession of a loaded .38 caliber pistol during the drug transaction. The court resolved this issue against Garcia and sentenced him to 235 months to be followed by a three-year term of supervised release.
Garcia raises two claims on this appeal. First, he contends that the court abused its discretion in refusing to allow withdrawal of his guilty plea. Second, he argues that enhancement of his sentence on the basis of Soto’s possession of a gun was improper.
I. Withdrawal of Guilty Plea
A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any “fair and just reason.” Fed.R.Crim.P. 32(d). A district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Signori, 844 F.2d 635, 637 (9th Cir.1988).
Garcia contends that the counsel who represented him at the time of his guilty plea erroneously predicted the sentence he could expect to receive. However, it is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea. See Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.1989). The fact that defendant was sentenced under the Guidelines does not change that result. United States v. Turner, 881 F.2d 684, 686-87 (9th Cir.1989). Moreover, the record indicates that Garcia’s plea was knowing and voluntary and made with full understanding that the court was not bound by any sentencing agreement. Accordingly, the district court did not abuse its discretion in refusing to[*1349] allow withdrawal of defendant’s guilty plea.
II. Section 2Dl.l(b)(l) enhancement
We review the district court’s finding that the defendant possessed a firearm during the commission of a narcotics crime offense for clear error. United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989). Whether conduct in furtherance of a conspiracy was reasonably foreseeable is also reviewed for clear error. United States v. Willis, 899 F.2d 873, 874 (9th Cir.1990).
In arriving at Garcia’s base offense level under the guidelines, the district court applied a two-level upward adjustment, pursuant to Guidelines section 2D1.1(b)(1), based on a co-conspirator’s possession of a firearm at the time and place of the offense. Section 2Dl.l(b)(l) calls for a two point increase in a defendant’s base offense level “if a firearm or other dangerous weapon was possessed during commission of the offense.” The district court applied this enhancement to Garcia through section lB1.3(a)(l), which requires the sentencing judge to consider all acts and omissions that occurred during the commission of the offense. The commentary to that section provides that in cases of criminal conspiracy, a defendant is accountable for the conduct of others undertaken in furtherance of the conspiracy that was “reasonably foreseeable by the defendant.” U.S. S.G. § 1B1.3, comment.(n.l).
The district court did not err in adjusting Garcia’s sentence on the basis of co-conspirator Soto’s possession of a weapon. Our first inquiry is whether the district court’s finding that Soto possessed a firearm during the commission of the drug offense was clearly erroneous. It was not. The Guidelines’ commentary provides that enhancement for weapon possession should be applied “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment, (n.3).
Garcia argues that it was clearly improbable that Soto’s firearm was connected with the offense, since the firearm remained under the floormat in the vehicle when Soto exited to meet with the “buyer” of the cocaine. In United States v. Heldberg, 907 F.2d 91 (9th Cir.1990), this court considered whether it was clearly improbable that an unloaded gun in the locked trunk of a vehicle used for importing controlled substances was connected with the importation offense. Although the gun was not loaded and was not located on Heldberg’s person, we found that the defendant had not demonstrated that the connection was “clearly improbable.” Held-berg’s revolver was “designed to be used to threaten, injure, or kill human beings,” and was located in the vehicle he was using to commit the importation offense. Id. at 93; see also Gillock, 886 F.2d at 223 (section 2D1.1(b)(1) enhancement justified where weapon was located “in close proximity” to the illegal drugs) (quoting United States v. Jones, 875 F.2d 674, 676 (8th Cir.1989)). Here, despite the fact that Soto did not carry the gun with him when he exited the vehicle to open the car trunk, it was loaded and “in close proximity” to the drugs to be delivered. It was not error to conclude that Soto possessed the gun while committing the drug offense and that the connection between the gun and the offense was not clearly improbable. See id. at 223.
Our second inquiry is whether the district court’s finding that Garcia reasonably should have foreseen Soto’s possession of the gun was clearly erroneous. We believe it was not.
Under the Guidelines, a defendant convicted of conspiracy may be sentenced not only on the basis of his own conduct, but also on the basis of the “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” U.S.S.G. § 1B1.3, comment, (n.l). Thus, this court has recently held that a defendant convicted of conspiracy to distribute cocaine may receive an upward adjustment for possession of a firearm even though the gun was in the possession of a co-conspirator. Willis, 899 F.2d at 875. In Willis, a wife’s sentence was enhanced on the basis of her husband’s possession of a gun.[*1350] In that case, the court noted that there was evidence indicating that the husband’s gun was visible, and thus it was reasonable to infer that the wife had actual knowledge of its possession. In addition, the court noted that where the co-conspirators are few in number and know each other well, the court may infer that each participant knew the others’ “methods of operation.” Id. (quoting United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir.1986)).
Here, it does not appear from the record that Garcia had actual knowledge of Soto’s possession of the gun, which was hidden under the floormat. Nor can we tell from the record how well Garcia and Soto knew each other. However, the drug transaction involved approximately 17 kilograms of cocaine, and the negotiations leading up to the sale lasted nearly one month. Garcia should reasonably have foreseen that Soto would possess a gun during the execution of such a major drug sale. While this court has “stop(ped) short of holding that there is a presumption as to the presence of a firearm in illicit narcotics transactions,” id., we have noted that “trafficking in narcotics is very often related to the carrying and use of firearms.” United States v. Ramos, 861 F.2d 228, 231 n. 3 (9th Cir.1988). In light of the large amount of drugs involved in this case, Soto’s possession of the gun was reasonably foreseeable. [1]
Thus, the district court was not clearly erroneous in attributing Soto’s possession of the gun to Garcia. The enhancement of his sentence was therefore appropriate.
AFFIRMED.
. We decline to follow the test adopted by the Eleventh Circuit in United States v. Otero, 890 F.2d 366 (11th Cir.1989), to determine when sentence enhancement for a co-conspirator’s firearms possession is proper. In Otero, the Eleventh Circuit established a three-part test. First, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing a firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession.
We do not adopt this formulation for two reasons. First, to the extent that the Eleventh Circuit test dispenses with the requirement of reasonable foreseeability, it relies on an erroneous interpretation of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The Supreme Court in Pinkerton indicated that liability for the substantive offense of a co-conspirator should not be found if the offense "was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 648, 66 S.Ct. at 1184; see abo United States v. Monroe, 552 F.2d 860, 864 (9th Cir.1977) (quoting Pinkerton). The Eleventh Circuit’s opinion does not consider or even mention this reasonable foreseeability requirement.
More important, in relying on Pinkerton liability, the Eleventh Circuit’s opinion in Otero ignores the fact that co-conspirator liability for the purpose of sentence enhancement has been dealt with explicitly in the Guidelines. Specifically, the commentary to § lB1.3(a)(l) provides that, "(w)here it is established that the conduct was neither within the scope of the defendant’s agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant’s offense level under this guideline.” U.S.S.G. § 1B1.3, comment, (n.l). Thus, where an act is not within the scope of the defendant’s agreement, the Guidelines’ commentary makes clear that reasonable foreseeability is a prerequisite to sentence enhancement on the basis of acts of a co-conspirator.