                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JUN 13 2016
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 14-30248

               Plaintiff - Appellee,              D.C. No. 2:11-cr-00159-RHW-1

 v.
                                                  MEMORANDUM*
DORIS E. NELSON,

               Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of Washington
                 Robert H. Whaley, Senior District Judge, Presiding

                            Submitted February 4, 2016**
                                Seattle, Washington

Before:        KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.


      1. Nelson’s first motion to withdraw her guilty plea listed four “points on

which it is ‘plausible’ that given [new] information . . . , she would not have plead

[sic] guilty” to each count charged in the indictment. First, she claimed that a

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                 page 2
securities lawyer, Conrad Lysiak, had only recently become available to assist with

her defense. The district court reasonably rejected this contention, as the record

showed that Nelson “had access to Mr. Lysiak’s expertise” for “over two years

after the Indictment.” Second, Nelson claimed that, before she pled guilty, she did

not have ready access to a hard drive containing important evidence. The district

court reasonably found that her statements about the significance of the hard drive

were not credible because she had access to the bulk of the information contained

on the hard drive before pleading guilty. See United States v. Nostratis, 321 F.3d

1206, 1211 (9th Cir. 2003) (the district court has broad discretion to make

credibility determinations in evaluating a motion to withdraw).

      Third, Nelson claimed she did not know until after she pled guilty that she

had a right to retain counsel. The district court reasonably found this claim

disingenuous because Nelson had previously acknowledged that she had such a

right. Finally, pointing to the fact that the district court grouped counts during the

plea colloquy, Nelson alleged that the colloquy contained a “less-than-clear

acknowledgment as to guilt on every count.” But Nelson failed to identify

particular counts for which she may not have acknowledged guilt had the district

court inquired about each count separately. Accordingly, the district court didn’t
                                                                                   page 3
abuse its discretion in denying Nelson’s first motion to withdraw. See United

States v. Yamashiro, 788 F.3d 1231, 1236–37 (9th Cir. 2015).


      2. Nelson filed a renewed motion to withdraw her guilty plea just before

sentencing. Her recently-retained counsel submitted an affidavit declaring that

when Nelson pled guilty, she didn’t realize she would be “exposed to a sentence

based upon all alleged losses—those within the indictment and those provable

under a preponderance standard.” The district court reasonably determined that

this contention wasn’t supported by the record. Nelson never alleged that her trial

counsel misled her about what her ultimate Guidelines calculation would be. She

also acknowledged at her plea hearing that she faced a maximum sentence of 2200

years. Finally, as the district court noted, the relevant conduct for sentencing

purposes was “by and large . . . set forth in the indictment,” which Nelson “had and

understood, according to her testimony” when pleading guilty. Nelson offered no

testimony contradicting these previous acknowledgments, and “[s]tatements made

by a defendant during a guilty plea hearing carry a strong presumption of

veracity.” Id. at 1237 (quoting United States v. Ross, 511 F.3d 1233, 1236 (9th

Cir. 2008)).
                                                                                 page 4
        Nor could Nelson withdraw her plea because she expected that she would

receive a three-point Guidelines reduction for pleading guilty. “A defendant

cannot withdraw his plea because he realizes that his sentence will be higher than

he had expected.” Nostratis, 321 F.3d at 1211. Accordingly, the district court

didn’t abuse its discretion in finding that Nelson’s sentencing expectations didn’t

constitute a “fair and just reason” for withdrawal. See Yamashiro, 788 F.3d at

1237.

        Finally, Nelson’s counsel claimed her trial attorneys hadn’t been prepared

for trial at the time she pled guilty. But the district court had already determined,

in rejecting Nelson’s attempt to substitute counsel before pleading guilty, that “her

counsel [were] adequately prepared for trial.” Additionally, Nelson represented

during her plea hearing six days later that she was satisfied with her lawyers, and

both attorneys stated on the record that they were ready to go to trial, which was

set to begin the following week. Before us, Nelson also suggests that the district

court applied the wrong standard in rejecting this claim. But the order denying

Nelson’s original motion to withdraw her guilty plea supports the inference that the

district court applied the proper standard when rejecting her new claim.

Accordingly, the district court didn’t abuse its discretion in denying Nelson’s

renewed motion to withdraw her guilty plea.
            page 5
AFFIRMED.
