                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 04 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50566

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00713-DDP-1

  v.
                                                 MEMORANDUM*
HAYEL ABDALLAH ALI JABER, AKA
Hayel A. Jaber, AKA Heyel Jaber, AKA
Hayel A. A. Jaber, AKA Tony Jaber, AKA
Hayel Jabar,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                             Submitted July 16, 2010**
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: FARRIS and SILVERMAN, Circuit Judges, and ROBART, District
Judge.***

      Defendant Hayel Jaber appeals the district court’s denial of his motion to

withdraw his guilty plea and its entry of a judicial order of removal. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Jaber first argues that the district court applied an incorrect legal standard in

ruling on his motion to withdraw, or alternatively, that the court abused its

discretion in its application of the correct standard. The record demonstrates the

contrary. The district court explicitly cited Federal Rule of Criminal Procedure 11

and the “fair and just reason” line of cases. Following an evidentiary hearing, the

court found that Jaber’s attorney did indeed adequately investigate the case and

gave sufficient advice about both the possible defenses to deportation and the

criminal charges. The court thus found no fair and just reason to permit the guilty

plea to be withdrawn. The court also found that Jaber’s guilty plea was knowing

and voluntary, but it did not confuse the standard for the validity of a plea with the

standard for withdrawing a plea. The district court did not clearly err in any of its

factual findings or abuse its discretion in denying the motion to withdraw the plea.




        ***
            The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.

                                          2
       Secondly, Jaber argues that the district court did not have jurisdiction to

enter a judicial order of removal because the government furnished the district

court, without objection, only an unsigned copy of the concurrence of the Assistant

Secretary of Immigration and Customs Enforcement. We review de novo whether

the district court had jurisdiction. See United States v. Holler, 411 F.3d 1061, 1064

(9th Cir. 2005). Section 1228(c)(5) of Title 8 of the United States Code permits

the U.S. Attorney, with the concurrence of the Immigration Commissioner1, to

enter into a plea agreement calling for an order of judicial removal. However, the

statute does not require that the concurrence be in writing, much less that it be

signed or filed with the court. Cf. 8 U.S.C. § 1228(c)(2)(A) (“The United States

Attorney shall file with the United States district court . . . a notice of intent to

request judicial removal); 8 U.S.C. § 1228(c)(2)(B) (“[T]he United States Attorney

. . . shall file . . . a charge containing factual allegations regarding the alienage of

the defendant”). The unsigned concurrence and the government’s averment that it

had obtained a signed concurrence sufficiently establish ICE’s concurrence under

the statute. There was no objection to the form or content of the concurrence, or

       1
       Section 1101(a)(8) of Title 8 of the United States Code defines
“Commissioner” as “the Commissioner of Immigration and Naturalization.” On
March 1, 2003, the Immigration and Naturalization Service ceased to exist and its
functions were transferred to the Bureau of Immigration and Customs
Enforcement. Kawashima v. Holder, 593 F.3d 979, 982 n.2 (9th Cir. 2010).

                                            3
any suggestion that the concurrence had not been obtained. The district court did

not lack jurisdiction to enter the judicial order of removal.

      AFFIRMED.




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