                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 20 2014

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

UNITED STATES OF AMERICA,                        No. 13-30261

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00089-RRB-1

  v.
                                                 MEMORANDUM*
LAMAR JOSEPH FACINE,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-30286

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00044-TMB-3

  v.

LAMAR FACINE,

              Defendant - Appellant.


                  Appeal from the United States District Court
                            for the District of Alaska
                Ralph R. Beistline, Chief District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted August 14, 2014**
                               Anchorage, Alaska

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

      Lamar Facine appeals his conviction and sentence after pleading guilty to

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (counts 1 and 2); assault on a federal agent, in violation 18 U.S.C. §

111(a) (count 3); and possession of cocaine in violation of 21 U.S.C. § 844(a)

(count 4). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. The district court properly exercised its discretion in denying Facine’s

motion to withdraw his guilty plea. See United States v. Bonilla, 637 F.3d 980,

983 (9th Cir. 2011) (“We review for abuse of discretion the district court’s denial

of [the defendant’s] motion to withdraw his plea . . . .”). Facine failed to show a

“fair and just reason” to permit the withdrawal of his plea. See Fed. R. Crim. P.

11(d)(2)(B) (permitting defendant to withdraw his guilty plea if he “can show a fair

and just reason for requesting the withdrawal”).

      First, Facine argues that Valenzuela’s letter to the district court, in which she

“confessed” that she had lied in her prior statements to law enforcement agents,

constituted newly discovered evidence. See United States v. Showalter, 569 F.3d

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
1150, 1157 (9th Cir. 2009) (stating that a defendant claiming to have new evidence

justifying withdrawal must show that “the evidence is both (1) newly discovered[]

and (2) plausibly could have motivated a reasonable person in the defendant’s

position to not plead guilty had he known about the evidence before pleading”).

However, Valenzuela’s recantation of her prior statements was not new, because

she had previously emailed a statement to the prosecutor indicating that she had

lied and wished to retract her prior statements implicating Facine. Importantly,

prior to entering his guilty plea, Facine already knew that Valenzuela had recanted

because he had received a copy of the email in discovery.

      Second, Facine argues that Valenzuela’s initiative in writing to the court was

a “display of courage” that constituted an intervening circumstance justifying the

withdrawal of his guilty plea, because such courage makes her a more persuasive

witness. While intervening circumstances may justify withdrawal of a guilty plea,

see id. at 1157, as stated, Valenzuela’s purported act of courage was certainly not

new because she had previously provided a similar statement to the prosecutor.

      Finally, even assuming that certain portions of Valenzuela’s letter to the

court, and her initiative in contacting the court, were considered to be newly

available, the result would be the same. In light of Facine’s possession of her

email prior to his guilty plea, such additional but similar evidence did not


                                          3
constitute the type of evidence that could plausibly motivate a reasonable person to

not plead guilty. See id.

      2. The district court did not clearly err in finding that Facine was not

entitled to a two-level reduction in his sentencing guidelines offense level for

acceptance of responsibility. See United States v. Rosas, 615 F.3d 1058, 1066 (9th

Cir. 2010) (“A district court’s decision about whether a defendant has accepted

responsibility is a factual determination reviewed for clear error.”). As the district

court noted, there was some evidence suggesting that Facine had engaged in

obstruction of justice by attempting to influence Valenzuela to recant her prior

statements. See U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.4 (stating that

conduct resulting in obstruction of justice indicates that the defendant has not

accepted responsibility).

      AFFIRMED.




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