                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 17 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10024

              Plaintiff - Appellee,              D.C. No. 3:92-cr-00001-CRB-14

  v.
                                                 MEMORANDUM *
DONELL HATCHER, AKA D, AKA
Darnell,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                 William B. Shubb, Senior District Judge, Presiding

                      Argued and Submitted January 10, 2011
                            San Francisco, California

Before: WALLACE, NOONAN, and SILVERMAN, Circuit Judges.

       Donell Hatcher challenges the district court's denial of his motion to

withdraw his guilty plea. The district court sufficiently advised Hatcher as to the

nature of his offense. See United States v. Minore, 292 F.3d 1109, 1115-16 (9th

Cir. 2002). Because Hatcher's plea did not expose him to a higher statutory


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
maximum sentence, there was no Apprendi error. See United States v. Villalobos,

333 F.3d 1070, 1074 (9th Cir. 2003). The district court reasonably concluded that

the government would be prejudiced if required to prosecute Hatcher now based on

a 1992 indictment. Accordingly, we hold that the district court did not abuse its

discretion in finding that Hatcher failed to establish that there was a fair and just

reason to withdraw his guilty plea. See Fed. R. Crim. P. 11(d)(2)(B).

      Hatcher also challenges his sentence. We find that the district court gave

adequate consideration to the need to avoid unwarranted disparities among

defendants with similar records who have been found guilty of similar conduct.

Additionally, the district court did not abuse its discretion in determining that

Hatcher's sentence should run consecutively to his sentence for an unrelated

conviction in Arµansas. See U.S.S.G. y 5G1.3(c) comment n. 3.

      However, the district court clearly erred in applying a two-level aggravating

role enhancement. In determining whether to apply a sentencing enhancement, a

court may not rely exclusively upon disputed factual statements in the presentence

report ('PSR'). United States v. Ameline, 409 F.3d 1073, 1085-86 (9th Cir. 2005)

(en banc). Here, the district court purported to rely on 'wiretap information,' but

nothing in the government's wiretap evidence supports a conclusion that Hatcher

was an 'organizer, leader, manager, or supervisor.' See U.S.S.G. y 3B1.1(c).


                                            2
      Accordingly, we AFFIRM the district court's denial of Hatcher's motion to

withdraw his guilty plea and REMAND for resentencing.




                                       3
                                                                            FILED
United States v. Hatcher, No. 10-10024                                       FEB 17 2011

                                                                         MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, concurring in part and dissenting in part: U RT OF AP PE A LS
                                                                     U.S . CO




      I agree with the majority's conclusion that Hatcher failed to establish a fair

and just reason for withdrawing his guilty plea. See Fed. R. Crim. P. 11(d)(2)(B).

I also agree with the majority on the sentencing issues except that I part company

with my colleagues' decision to remand for resentencing. The question here is

whether the district court committed clear error when it assessed a two-level

leadership enhancement based on wiretap evidence introduced by the government

at Hatcher's sentencing. Because I lacµ a 'definite and firm conviction' that the

district court erred, I respectfully dissent. See United States v. Asagba, 77 F.3d

324, 326 (9th Cir. 1996).

      Although the government's wiretap evidence is not liµe the smoµing gun, it

does support the district court's finding that Hatcher directed his co-defendants'

activities. The wiretaps consist of several 1991 conversations in which Hatcher

agreed to a series of drug deals with Timothy Bluitt. During these conversations,

Hatcher generally arranged the terms of the transactions and repeatedly referred to

one of his confederates, Spencer Henderson, as 'my boy.' Admittedly, this

designation is susceptible to various meanings; nonetheless, the sentencing court

would not commit clear error by finding in the context of this case that this


                                          1
ambiguous title is suggestive of subservient status. See United States v. John

Hoang Cao, 220 F. App'x 902, 906, 908 (11th Cir. 2007) (concluding that the

defendant's reference to a colleague as 'my boy' supported the sentencing court's

decision to impose a four-level leadership adjustment). I would follow the

Eleventh Circuit.

       In another conversation involving a different drug delivery, Henderson

referred to Hatcher as 'Big Dog.' As with 'my boy,' the 'big dog' designation

could have various meanings depending on context. Nonetheless, based on the

context of the facts of this case, this title could easily be indicative of leadership.

When used as a designation, 'Big Dog' can be understood to mean 'an important

person.' See definition for Big Dog, Urban Dictionary,

http://www.urbandictionary.com. Liµewise, the term 'Big Dawg,' which has the

same pronunciation, often refers to an individual's 'status' within the leadership

'hierarchy' of a gang. See id. When evaluating sentencing decisions, our

precedent directs us to 'uphold the district court's factual findings used to support

a sentencing enhancement' unless those findings are the product of clear error. See

United States v. Mattarolo, 209 F.3d 1153, 1159 (9th Cir. 2000). By rejecting,

without any explanation, a reasonable interpretation of the terms 'my guy' and




                                            2
'Big Dog,' the majority inserts its personal views into the position of the factfinder

and ignores the Mattarolo direction not to do so. See id.

      Hatcher's sentencing memorandum is also enlightening. There, Hatcher

expressly conceded that he 'instructed' one of his co-defendants, Fredericµ

Merricµ, 'to taµe [a] car to a gas station where the spare tire containing [] drugs

would be given to Bluitt's confederates.' This order, when read in conjunction

with the wiretaps, further indicates that Hatcher had some degree of control over

his co-defendants' criminal conduct. See U.S.S.G. y 3B1.1(c).

      Thus, I fail to see the district judge's error that the majority believes is so

clear. The wiretap conversations indicate that Hatcher arranged all the details of

the drug transactions at issue. Neither of Hatcher's confederates ever negotiated

with Bluitt. Instead, the record indicates that Hatcher's 'boys' simply carried out

the transactions in a manner consistent with Hatcher's prior arrangements. Based

on this evidence, it can be inferred that Hatcher was the 'Big Dog' leading the

pacµ. See United States v. Panaro, 266 F.3d 939, 952 (2001) (upholding a role

adjustment where the defendant exercised 'decisionmaµing authority' and where

the 'nature of the offense' indicated that he was the leader). I cannot say with any

conviction, let a alone a definite and firm one, that the district court clearly erred




                                            3
by finding that Hatcher 'was an organizer, leader, manager, or supervisor'

pursuant to United States Sentencing Guidelines, section 3B1.1(c).

      I DISSENT.




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