                                                                   FILED
                      NOT FOR PUBLICATION                           OCT 27 2011

                                                                MOLLY C. DWYER, CLERK
               UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                      FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                      No. 10-10283

         Plaintiff-Appellee,                   D.C. No. 3:08-cr-00236-MMC

 v.

LUKE BRUGNARA,

         Defendant-Appellant.


             Appeal from the United States District Court
                for the Northern District of California
          Maxine M. Chesney, Senior District Judge, Presiding



UNITED STATES OF AMERICA,                      No. 10-10286

         Plaintiff-Appellee,                   D.C. No. 3:08-cr-00222-WHA

 v.

LUKE BRUGNARA,

         Defendant-Appellant.

              Appeal from the United States District Court
                for the Northern District of California
              William H. Alsup, District Judge, Presiding
                                 MEMORANDUM *

                            Submitted October 13, 2011 **
                              San Francisco, California

Before: WALLACE, THOMAS, Circuit Judges, and GEORGE,*** District Judge.

        In a prosecution the parties refer to as the Tax Case, Luke Brugnara pled

guilty to three counts of filing false tax returns in violation of 26 U.S.C. §7206(1).

He appeals the district court’s denial of his motion to withdraw his plea in the Tax

Case, and the order of restitution imposed at sentencing. We affirm.1

                                           I.

        We review the district court’s denial of Brugnara’s motion to withdraw his

  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
     This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
  ***
      The Honorable Lloyd D. George, Senior District Judge for Nevada, sitting
by designation.
  1
       In a separate prosecution (the Endangered Species Case), Brugnara pled
guilty to four counts of taking a protected species, in violation of 16 U.S.C. §§
1538 and 1540, and two counts of making false statements to investigating agents,
in violation of 18 U.S.C. § 1001. Brugnara withdrew his motion to withdraw his
plea in the Endangered Species Case. However, he now asserts that we must
vacate his Endangered Species Case plea if we vacate his Tax Case plea, because
he pled guilty in both prosecutions as part of a global resolution. As we do not
vacate his Tax Case plea, we neither address his argument nor vacate his
Endangered Species Case plea.



                                           2
guilty plea for abuse of discretion. United States v. Briggs, 623 F.3d 724, 727 (9th

Cir. 2010). Brugnara did not meet his burden of showing “a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. Pro. 11(d)(2)(B). After reviewing

the record de novo, we conclude that Brugnara’s plea was voluntary. See United

States v. Signori , 844 F.2d 635, 688 (9th Cir. 1988). The district court engaged in

a detailed plea colloquy with Brugnara. Brugnara testified as to his mental and

physical condition and lack of coercion. He denied that his incarceration precluded

his voluntary and informed decision. He testified that he was satisfied with his

counsel. He volunteered that the idea to plead guilty was his. The district court

properly credited this testimony over Brugnara’s subsequent assertions and

statements to the contrary. United States v. Nostratis, 321 F.3d 1206, 1210 (9th

Cir. 2003).

      Brugnara’s failure to handwrite his conduct on a plea application does not

present a fair and just reason for withdrawal. The district court properly relied on

the government’s proffer and Brugnara’s testimony during the plea colloquy to

determine that there was a factual basis for his plea. Fed. R. Crim. Pro. 11(b)(3).

He proffered no newly-discovered evidence in support of his claim of innocence.

An unsupported claim of innocence is not a fair and just reason for withdrawal.

See United States v. Turner, 898 F.2d 705, 713 (9th Cir.1990).



                                          3
      The government did not breach any promise made to Brugnara in connection

with his decision to plead guilty.

                                          II.

        We review de novo the legality of the district court’s restitution order.

United States v. Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010). If the order is within

statutory bounds, we review the factual findings supporting the award for clear

error, and the amount of restitution for abuse of discretion. Id.

      The district court had authority to order restitution as a condition of

supervised release for Brugnara’s tax convictions. United States v. Batson, 608

F.3d 630, 636 (9th Cir. 2010). The district court acted within its discretion by

ordering restitution in the amount of $1,904,625, as that amount was supported by

an IRS agent’s declaration and accompanying schedules. In discussing restitution

and the amount of tax owed, Brugnara’s counsel agreed “the numbers

mathematically are correct.” The district court also did not abuse its discretion by

not holding an evidentiary hearing. See United States v. Rice, 38 F.3d 1536, 1546

(9th Cir. 1994).

      AFFIRMED.




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