                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 5 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                      No. 03-3093
 v.                                                (District of Kansas)
                                              (D.C. No. 02-CR-10110-WEB)
 JOSE A. TRETO,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


I.    Factual Background

      On November 4, 2002, appellant Jose A. Treto pleaded guilty to one count

of attempting to distribute methamphetamine, in violation of 21 U.S.C. § 841.

Pursuant to the terms of the plea agreement, Treto acknowledged that he had not

yet provided substantial assistance to the government. The agreement further

provided, however, that the government would file a motion pursuant to U.S.S.G.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
§ 5K1.1 if it determined before sentencing that Treto did provide substantial

assistance.

      Treto also signed a Petition to Enter Plea of Guilty which contained the

following statement,

      My lawyer informed me that the plea of “GUILTY” could subject me
      to a mandatory minimum sentence of not less than 10 years
      imprisonment (if applicable) and to a maximum punishment which,
      as provided by law, is life to be followed by a term of supervised
      release of at least 5 years (Title 21 Drug Offense) and not to exceed
      5 years . . . .

At the change of plea hearing, the district court reviewed this provision with

Treto stating, “Your lawyer has informed you that a plea of guilty to Count 1 of

the superseding indictment could subject you to a mandatory minimum

punishment of ten years imprisonment and maximum possible punishment of life

imprisonment . . . . Do you understand that?” Treto responded, “Yes.” After the

government summarized the terms of the plea agreement, the court then addressed

Treto as follows,

      This agreement says you understand that the maximum sentence that
      may be imposed as to Count 1 of the indictment is no more than life
      imprisonment. Counsel announced that there’s a mandatory
      minimum of ten years in this case, didn’t he? You understand that?

Treto responded, “Yes, Your Honor.” Treto also stated under oath that he had

delivered a package containing more than fifty grams of methamphetamine to an

individual named Ronald Howe. After questioning Treto further about the


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voluntariness of his guilty plea, the district court found that the plea was made

freely and voluntarily and accepted it.

      A sentencing hearing was set for January 13, 2003. On that date, however,

Treto appeared before the district court and requested a continuance to give him

more time to assist the government. The court granted both that continuance and

another requested by Treto on January 22, 2003. One week later, Treto’s attorney

filed a motion to withdraw from the case. The motion was granted on February 3,

2003 and new counsel was appointed. One month later, Treto filed a motion to

withdraw his guilty plea. The district court denied the motion and sentenced

Treto to 120 months’ imprisonment. Treto filed a timely notice of appeal from

the denial of his motion to withdraw his plea. 1

II.   Discussion

      This court reviews the denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997).

However, we review de novo the question of whether the plea was knowing and

voluntary. United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000).

Pursuant to Rule 11(d) of the Federal Rules of Criminal Procedure, a defendant

who has not yet been sentenced may be permitted to withdraw his guilty plea if he


      1
       We admonish defense counsel for failure to adhere to 10th Cir. R.
28.2(A)(1) which requires that he attach to appellant’s brief a copy of the district
court’s written order denying appellant’s motion to withdraw his guilty plea.

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“can show a fair and just reason.” We have held that the district court should

consider the following factors when determining whether a defendant has

demonstrated a fair and just reason: “(1) whether the defendant has asserted his

innocence, (2) prejudice to the government, (3) delay in filing defendant’s

motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6)

whether the plea is knowing and voluntary, and (7) waste of judicial resources.”

United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993).

      After Treto filed the motion to withdraw his guilty plea, the district court

held an evidentiary hearing. Testimony was given by Treto, Wichita police

detective Bryan Martin, and attorney Mark Schoenhofer. Schoenhofer represented

Treto at the change of plea hearing. Treto testified that Schoenhofer

told him he would receive probation if he entered a guilty plea and did not discuss

the statutory minimum mandatory sentence with him. He also stated that he

reviewed the plea agreement with Schoenhofer for “less than one minute” and did

not understand when he signed it that the government was not obligated to file a §

5K1.1 motion on his behalf. Treto further testified that he signed the plea

agreement and testified falsely at the change of plea hearing because he was

directed to do so by Schoenhofer and because he did not understand the questions

posed by the court. On cross-examination, Treto admitted that he received a letter

from Schoenhofer three days before the change of plea hearing which stated,


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“This is a case where the mandatory minium is ten years. . . . That means that ten

years is the minimum that you will receive.” The letter further stated, “There is

no guarantee what your sentence will be if you enter a plea agreement with the

government, and there will be no guarantees if you will receive a reduction of

your sentence at all.”

      Schoenhofer then took the stand and testified that he did not tell Treto that

his guilty plea would guarantee a sentence of probation. Schoenhofer testified

that he told Treto he was facing a mandatory minimum of ten years and that there

was no guarantee the government would file a § 5K1.1 motion if he pleaded

guilty. He further testified that he reviewed the written plea agreement with Treto

line by line before the change of plea hearing.

      The district court denied Treto’s motion. The court made factual findings

and discussed each of the seven factors set forth in Gordon. Specifically, the

court found that Treto was truthful when he told the court at the change of plea

hearing that he was guilty. The court then found that allowing Treto to withdraw

his plea would prejudice the government and would inconvenience the court. It

further found that Treto had the benefit of counsel and concluded that

Schoenhofer did not render ineffective assistance to Treto. Thus, Treto’s plea

was knowing and voluntary. Finally, the court found that Treto delayed filing the




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motion to withdraw his plea until he learned that the government did not intend to

file a § 5K1.1 motion.

       In this appeal, Treto argues that consideration of the seven factors leads to

the conclusion that he demonstrated a fair and just reason for the withdrawal of

his plea agreement. We disagree. The district court properly applied the Gordon

factors and correctly concluded that Schoenhofer did not render ineffective

assistance to Treto. Accordingly, we conclude that the district court did not abuse

its discretion when it denied Treto’s motion to withdraw his guilty plea.

III.   Conclusion

       Upon review of the district court’s order, the parties’ briefs, and the entire

appellate record, this court affirms the denial of Treto’s motion to withdraw his

guilty plea for substantially those reasons set out in the district court’s order dated

March 18, 2003.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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