                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 31 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   16-50384

                Plaintiff-Appellee,              D.C. No.
                                                 2:12-cr-01197-DSF-1
 v.

DAVID WILLIAMS,                                  MEMORANDUM *

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted July 9, 2018
                              Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and NYE,** District Judge.

      David Williams appeals the district court’s denial of his motion to withdraw

his guilty plea. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. The district court properly recited in its decision that Williams carried the

burden of establishing a “fair and just reason” for withdrawing his guilty plea.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.

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United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005). The district court then

went on to properly apply this legal standard.

      a. First, in considering whether Williams had presented a fair and just reason

for withdrawal, the district court properly considered the strength of the

government’s case. Williams had argued that he should be permitted to withdraw

his guilty plea because the factual basis for his plea agreement was either

indisputably false or legally insufficient to support the wire fraud counts to which

he pled guilty. A district court “need not rely on the plea colloquy alone and ‘may

conclude that a factual basis exists [for a plea] from anything that appears on the

record.’” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009)

(citation omitted). Therefore, in re-examining whether a factual basis existed for

Williams’ guilty plea in the first place, it was proper for the district court to

consider all the evidence in the record.

      b. The district court did not commit plain error when it did not find

Williams’ allegedly inadequate plea colloquy was a fair and just reason for

withdrawal of his guilty plea. Williams argues that while he admitted to several of

the elements necessary to establish the wire fraud convictions at his plea colloquy,

he never admitted to the necessary timeframe. Specifically, he never stated at the

plea colloquy that he formulated his scheme to defraud before causing the wire

fraud transfers to occur, which is a necessary element of the wire fraud charges.


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See 18 U.S.C. § 1343; Model Crim. Jury Instr. 9th Cir. 8.124 (2010); United States

v. Brugnara, 856 F.3d 1198, 1207 (9th Cir. 2017); United States v. Sullivan, 522

F.3d 967, 975 (9th Cir. 2008).

      Williams did not notify the district court of this alleged error at the plea

colloquy or in the motion to withdraw guilty plea. Accordingly, we review for

plain error. United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016).

      As to whether there was a factual basis for Williams’ guilty plea, the

evidence in the record, including the evidence presented at the four days of trial,

readily established that Williams knowingly devised a plan to defraud investors in

June 2007, before he caused the investors to transfer money to his company, the

Sherwood Secured Income Fund LLC (“SSIF”), in January 2008. Thus, the district

court did not err in finding there was a legally sufficient factual basis for the plea

agreement at the guilty plea stage.

      At the subsequent motion to withdraw stage, the district court also did not

err. Williams has not demonstrated that the district court’s failure to elicit

statements from him establishing the exact timeline of events during the plea

colloquy is a fair and just reason for withdrawal. In light of the other evidence

establishing his guilt, Williams has not shown that “a reasonable person in [his]

position [would] not . . . have pled guilty” if alerted to the gaps in the plea




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colloquy. United States v. Yamashiro, 788 F.3d 1231, 1237 (9th Cir. 2015)

(internal quotation marks omitted).

      c. The district court did not abuse its discretion in concluding that a

misstatement in the plea agreement was not a fair and just reason to permit

Williams to withdraw his guilty plea. The plea agreement misstated that the

“private placement memorandum” (“PPM”), which Williams gave to investors,

specified that the SSIF monies were to be “secured by a lien.” In fact, the PPM

stated that the promissory notes would be secured by the assets of the SSIF. As

stated previously, even disregarding this one error, there is clear evidence in the

record supporting a finding of guilt on the wire fraud charges. In addition, the

misstatement in the plea agreement regards a superfluous detail that does not affect

a finding of guilt on the wire fraud charges. Considering these circumstances,

Williams has not established that a reasonable person would not have pled guilty if

he or she knew about the misstatement in the guilty plea. Id.

      2. The district court did not commit plain error in declining to grant the

motion to withdraw guilty plea on the grounds that Williams’ attorneys did not

understand a defense he wanted them to assert and the plea deal offered him little

benefit.

      Williams argues for the first time on appeal that his attorneys did not

understand his so-called “PPM defense.” Williams’ PPM defense contends that


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Williams made no misrepresentations to investors in the PPM (and thus did not

commit wire fraud) because the PPM required only that SSIF funds be used to

invest in a real estate company, and the company in which Williams invested the

SSIF funds—Williams Financial Group—was a real estate company because it

held the title to a single piece of real property.

       There is no evidence that Williams’ attorneys did not understand the PPM

defense. Rather, the record shows the attorneys fully investigated the defense and

found it unsupported and unpersuasive. Moreover, even if Williams could establish

that Williams Financial Group was a real estate company, that fact would not

absolve him of guilt—there was a plethora of evidence that Williams used SSIF

funds, invested in Williams Financial Group, for his personal and family expenses,

not to invest in real estate.

       Finally, Williams knew at the time he entered the plea agreement the extent

of any benefit he would obtain from pleading guilty rather than proceeding to trial.

Generally, only reasons “that did not exist when the defendant entered his plea”

constitute fair and just reasons for withdrawal. United States v. Ortega-Ascanio,

376 F.3d 879, 883 (9th Cir. 2004). In addition, Williams cannot withdraw his plea

simply because he thought he would get more benefit out of the plea agreement, in

the form of a lighter sentence or a smaller restitution order, for example. United

States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003). Thus, the district court did


                                            5                                  16-50384
not commit an error, let alone a plain error, in failing to grant the motion to

withdraw guilty plea on this ground.

      AFFIRMED.




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