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rejecting defendant's challenge that the court lacked personal jurisdiction over him and concluding that defendant's "contentions are frivolous and the courts ordinarily reject similar contentions without extended argument"
Summary of this case from Browne v. ScottOpinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California, Fern M. Smith, District Judge, Presiding.
Before REINHARDT, TROTT, and MCKEOWN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Eural Wills, II, appeals his guilty-plea conviction and the sixty-month sentence imposed for conspiracy to escape from federal custody, in violation of 18 U.S.C. §§ 371 and 751. Pursuant to Anders v. California, 386 U.S. 738 (1967), Wills's counsel has filed a brief stating that he has found no meritorious issues for review and a motion to withdraw as counsel of record.
Although counsel identifies no issues, one viable issue involves whether Wills should have been allowed to withdraw his guilty plea at the time of sentencing. A court may permit a plea to be withdrawn before sentencing if the defendant shows any fair and just reason. See Fed.R.Crim.P. 32(e); United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995). Wills requested permission to withdraw the guilty plea on the ground that he had been entrapped.
Although Wills waived his right to appeal his conviction and sentence in the plea agreement, the district court informed Wills that he had the right to appeal from its denial of the request to withdraw the guilty plea. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995) (holding that an oral pronouncement that defendant had right to appeal trumped the plea agreement in the face of the government's failure to object). Thus, we have jurisdiction to consider this appeal.
To succeed on a claim of entrapment, the defendant must establish evidence that 1) he was induced to commit the offense and 2) he lacked the predisposition to commit it. See United States v. Cruz, 127 F.3d 791, 797 (9th Cir.1997), cert. denied, 118 S.Ct. 896 (1998). Wills offered no evidence to support his claim of entrapment at the sentencing hearing. Because Wills did not carry his burden of demonstrating a fair and just reason for withdrawal, the district court did not abuse its discretion in finding that no good-faith basis existed to permit the withdrawal of the plea. See Alber, 56 F.3d at 1111; United States v. Turner, 898 F.2d 705, 713 (9th Cir.1990) (holding that the district court did not abuse its discretion by denying withdrawal based on defendant's unsupported protest at sentencing hearing).
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), discloses no further issues for review. Accordingly, we GRANT counsel's motion to withdraw and AFFIRM the district court's judgment.
AFFIRMED.