Free Order on Motion to Withdraw Plea of Guilty - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 vs. 11 Joel Gutierrez-Jimenez, 12 Defendant. 13 14 The court has before it defendant's motions to withdraw from plea agreement in CR15 02-1147 (doc. 32) and in CR-05-1504 (doc. 44). No responses have been received. Under 16 Rule 11(d), Fed. R. Crim. P., a defendant may withdraw a plea of guilty after the court 17 accepts the plea if he can show a fair and just reason for requesting the withdrawal. The 18 defendant's principal reason for seeking to withdraw is his concern over the immigration law 19 consequences of his plea of guilty. He has also had a change of heart over his waiver of his 20 right to appeal and the length of the sentence. 21 But this court took the plea in this case and specifically asked the defendant about his 22 understanding of the effect his conviction would have on his status. The relevant excerpt 23 follows: 24 25 26 27 28 THE COURT: And do you also understand that given the nature of this offense and your status as an alien, that this offense will have a negative effect on any immigration status that you have in the United States? THE DEFENDANT: Yes, I did understand. Transcript of May 26, 2006 at 18.
Case 2:02-cr-01147-FJM Document 33 Filed 08/24/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff,

) ) ) ) ) ) ) ) )

CR-02-1147-PHX-FJM CR-05-1504-TUC-FJM ORDER

1 It is thus plain that the defendant understood the negative effect of his plea on his 2 immigration status. Indeed, given the nature of the defendant's prior criminal history, which 3 he acknowledged to be Criminal History Category VI, we need not even have asked the 4 question since there is no realistic chance for the defendant ever to live in the United States 5 lawfully. 6 unconditionally lost long before this conviction. 7 The change of heart over the right to appeal and the length of the sentence is also 8 contradicted by the defendant's statements at the plea colloquy. This court would not have 9 accepted the plea unless it found the defendant's decision was knowingly, intelligently, and 10 voluntarily made. There is thus no fair and just reason for withdrawal of the plea in this case. 11 Accordingly, IT IS ORDERED DENYING the defendant's motions to withdraw from plea 12 agreement in CR-02-1147 (doc. 32) and in CR-05-1504 (doc. 44). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2Case 2:02-cr-01147-FJM Document 33 Filed 08/24/2006 Page 2 of 2

Thus, the defendant's potential to live in the United States lawfully was

DATED this 23rd day of August, 2006.