                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                               JUN 27 1997
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                         No. 96-1421
                                                       (D.C. No. 94-CR-348-S)
 DAVID MENDEZ,                                                (D. Colo.)

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before EBEL, KELLY, and LUCERO, Circuit Judges.



       Mr. Mendez was charged with manufacturing over 150 marijuana plants and

maintaining a place for their manufacture, 21 U.S.C. §§ 841(a), 856, to which he pled

guilty. He subsequently moved to withdraw his guilty plea pursuant to Fed. R. Crim. P.

Rule 32(e). The district court denied the motion and sentenced him to twelve months in

prison. Mr. Mendez now appeals, claiming that the district court abused its discretion in

denying his motion.




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                           Facts

        Mr. Mendez initially filed a motion to suppress, contending that the government

had violated his Fourth Amendment rights when it conducted a warrantless search of his

home with a thermal imager. The district court denied the motion and Mr. Mendez then

pled guilty. After several extensions, sentencing was finally scheduled for November 14,

1995.

        Before sentencing, Mr. Mendez moved to withdraw his guilty plea on the basis of

a Tenth Circuit decision filed October 4, 1995, holding that “the warrantless use of a

thermal imager upon a home violates the Fourth Amendment of the Constitution.” United

States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir. 1995). The district court postponed

sentencing and scheduled a status conference for January 18, 1996. In the meantime, the

government’s suggestion for rehearing en banc in Cusumano was granted on December 5,

1995, with arguments in March 1996. In May 1996, the en banc court vacated the panel

opinion in Cusumano, stating that “[w]e do not decide the constitutionality of the

warrantless use of the thermal imager to scan Defendants’ residence because any such

decision is unnecessary to a resolution of Defendants’ appeals.” United States v.

Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc). On August 21, 1996, the

district court denied Mr. Mendez’s motion to withdraw his plea and sentenced him to

twelve months in prison.




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                                         Discussion

       Fed. R. Crim. P. 32(e) provides that a defendant has the burden of establishing a

“fair and just” reason for withdrawal of a guilty plea. United States v. Guthrie, 64 F.3d

1510, 1513 (10th Cir. 1995). Whether a Rule 32(e) motion should be granted is within

the sound discretion of the district court. Id.

       Mr. Mendez claims that withdrawal would be “fair and just” because there has

been a “significant” change in the law regarding the constitutionality of the warrantless

use of thermal imagers. He contends that the vacated panel decision in Cusumano

indicated a willingness on the part of “several members” of the Tenth Circuit to hold that

a warrant is required to conduct a search with a thermal imager.

       Mr. Mendez has not established a “fair and just” reason for withdrawing his plea.

There has been no change in circuit law regarding thermal imagers, significant or

otherwise. To be sure, there is some difference of opinion on the warrantless use of

thermal imagers, but this was true at the time of Mr. Mendez’s plea. The en banc

decision in Cusumano vacated the earlier panel decision, restoring the status quo ante.

Cusumano, 83 F.3d at 1250-51. The district court did not abuse its discretion in denying

Mr. Mendez’s motion.




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The mandate shall issue forthwith.



                                     Entered for the Court



                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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