                                                                              FILED
                           NOT FOR PUBLICATION                                APR 26 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30079

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00062-RSM-1

  v.
                                                 MEMORANDUM*
QUY DINH NGUYEN, AKA The Boss,
AKA The Godfather, AKA The Old Man,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                        Argued and Submitted April 9, 2013
                               Seattle, Washington

Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.

       Quy Dinh Nguyen appeals from the denial of his motion to withdraw his

guilty plea. We have jurisdiction under 28 U.S.C. § 1291 and dismiss the appeal

pursuant to the appellate waiver included in Nguyen’s plea agreement. In the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
alternative, we affirm on the merits the district court’s denial of Nguyen’s motion

to withdraw.

      1.       “A defendant’s waiver of his appellate rights is enforceable if (1) the

language of the waiver encompasses his right to appeal on the grounds raised, and

(2) the waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398

F.3d 1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v.

Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Nguyen argues only

that his waiver is ambiguous as to whether he retained the right to pursue the

instant appeal, thus effectively conceding that his federal waiver was knowing and

voluntary. Pursuant to his plea agreement, however, Nguyen unambiguously

waived the right to appeal both the finding of his guilt (i.e., his conviction) and his

sentence. See United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011).

Nguyen’s appeal is thus dismissed.

      2.       Even if Nguyen had not waived his right to appeal, the district court

properly denied his motion to withdraw his guilty plea. Pursuant to Federal Rule

of Criminal Procedure 11(d)(2)(B), “[a] defendant may withdraw a guilty plea . . .

after the court accepts the plea, but before it imposes sentence if . . . the defendant

can show a fair and just reason for requesting the withdrawal.” The standard is

applied liberally. See United States v. Nagra, 147 F.3d 875, 880 (9th Cir. 1998).


                                            2
“Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies,

newly discovered evidence, intervening circumstances, or any other reason for

withdrawing the plea that did not exist when the defendant entered the plea.”

United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004).

      Nothing in the record indicates the district court applied an incorrect

standard in rejecting Nguyen’s motion. Moreover, Nguyen points to no flaws in

the federal proceedings. We thus conclude that Nguyen did not show a fair and

just reason to withdraw his plea. We do not reach his ineffective assistance of

counsel claim, which is better reserved for a habeas proceeding. United States v.

Simas, 937 F.2d 459, 463 (9th Cir. 1991).

      DISMISSED.




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