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

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LAW OFFICE OF NEIL C. LABARGE
NEIL C. LABARGE State Bar No. 13920 11 W . Jefferson St., #2 Phoenix, AZ 85003 (602) 252-4090 FAX (602) 252-2111 [email protected] Attorney for Defendant Gutierrez-Jim enez

6 7 8 9 U.S.A., 10 Plaintiff, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/Neil C. LaBarge ________________________________ NEIL C. LABARGE Defendant. Comes now defendant, through attorney Neil C. LaBarge, and respectfully moves to withdraw from the plea agreement. This motion is based upon the attached memorandum of points and authorities. Respectfully submitted this date: August 10, 2006. LAW OFFICE OF NEIL C. LABARGE JOEL GUTIERREZ-JIMENEZ, v. MOTION TO WITHDRAW FROM PLEA AGREEMENT No. CR02-1147-PHX-FJM IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Case 2:02-cr-01147-FJM

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Filed 08/10/2006

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MEMORANDUM

Mr. Gutierrez-Jimenez is charged with violation of his Supervised Release terms based on his currently pending charge of Illegal Re-entry After Deportation, 8 USC 1326, as enhanced by sub-section (b)(2), in CR05-1504-PHX-FJM. On May 26, 2006, he went through a guilty plea proceeding pursuant to a written plea agreement before this court. The written plea resolves both this Supervised Release case and the above Illegal Re-entry After Deportation charge. During the plea proceeding, Mr. Gutierrez-Jimenez recalls that the court advised him that a guilty plea could negatively affect his immigration status or the possibility of obtaining status in the future. Undersigned counsel does not have a specific memory of the court's comments at the time of the plea proceeding, and counsel has not ordered a copy of the transcript for review.

In order to withdraw from a plea agreement between the plea proceeding and sentencing, the defendant has the burden of demonstrating that there is a "fair and just reason" for doing so. Fed. Rules Cr. Proc., Rule 11(d)(2)(B); U.S. v. Davis, 428 F.3d 802, 805 (9 cir. 2005). However, this standard is applied liberally. Id. "Fair and just" reasons include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea. Id. Defendant advised counsel in writing on August 8, 2006 that he wanted counsel to file a Motion to Withdraw from the plea. Counsel visited defendant the next day and discussed the matter with him. Defendant's principal reason expressed to counsel was that after having had more time to think about the court's immigration related comments, that he does not want to do anything in this case that may hurt his future immigration opportunities. He also advised that he did not want to lose his right to appeal, and expressed displeasure with the length of the possible sentence under the plea. -2Filed 08/10/2006

Case 2:02-cr-01147-FJM

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Defendant submits that although the court may have commented on immigration issues during the change of plea, that defendant did not have a sufficient opportunity to fully consider any such immigration consequences during the brief exchange on the issue between the court and defendant at the plea. Defendant submits that such an issue is different in nature from the more standard issues that are discussed in a plea proceeding for the following reasons: 1) it is not contained in the written plea agreement and is therefore not reviewed with the defendant in writing before the change of plea proceeding, 2) in this specific case, counsel's log notes do not reflect that counsel and defendant ever discussed immigration issues in any of their conversations, and 3) when counsel's clients do ask about immigration consequences, it is generally counsel's practice not to attempt to advise clients in any detail about immigration issues, as he is not an immigration attorney. At most, counsel will advise, if asked, that it is never a positive thing to have a criminal conviction, that it could possibly affect immigration status, and that the client should consult with an immigration attorney in more detail if he wishes. Based on his log notes, in this case counsel cannot avow that he had even such a minimal immigration related conversation with defendant. Therefore, defendant submits that, applying the "fair and just" standard liberally as the law requires, the court could find that defendant's immigration concerns constitute either an intervening circumstance or a reason that did not exist at the time of the plea, in that defendant's full consideration of the issue did not occur until after the plea colloquy. Therefore, defendant respectfully requests that he be allowed to withdraw from his plea. Respectfully submitted this date: August 10, 2006. LAW OFFICE OF NEIL C. LABARGE

S/Neil C. LaBarge ________________________________ NEIL C. LABARGE

Case 2:02-cr-01147-FJM

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-3Filed 08/10/2006

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Original filed with the following via ECF this date: August 10, 2006. Clerk of the Court 401 W. Washington St. Phoenix, AZ 85003 Copies e-mailed to the following on this date: August 10, 2006.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4Filed 08/10/2006 Hon. Frederick J. Martone [email protected]

Case 2:02-cr-01147-FJM

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