                                                                               FILED
                           NOT FOR PUBLICATION                                 NOV 14 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50295

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01130- VBF-3

  v.
                                                 MEMORANDUM*
BARAKA MTUMI RAFIKI BETTS,
AKA BARAKA MTUMI BETTS

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                     Argued and Submitted October 12, 2011
                              Pasadena, California

Before: FERNANDEZ and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.**




       Baraka Mtumi Rafiki Betts entered an open plea to three counts: (1)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
conspiracy to commit bank robbery in violation of 18 U.S.C. § 371; (2) armed

bank robbery in violation of 18 U.S.C. §§ 2113(a), (d); and (3) use of a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Betts

subsequently filed a motion to withdraw his guilty pleas for armed bank robbery

(count two) and the firearm offense (count three). In the district court, Betts raised

arguments regarding newly-discovered evidence and attorney representation that

he has not renewed on appeal. Based on these arguments, Betts moved to

withdraw his guilty pleas. The district court considered Betts’ proffered grounds

and found, either taken together or individually, they did not establish a “fair and

just reason” for withdrawal of the guilty pleas. We affirm.1

      Betts identifies two issues on appeal, both raised here for the first time.

While Betts argues that abuse of discretion review is appropriate, we have

previously established that plain error review is employed when new arguments are

raised on appeal, even if the relief sought is the same as in the district court.

United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (“we review

issues . . . not properly raised before the district court for plain error”). Under the

plain error standard, a defendant must show: (1) there has been an error; (2) the

error was plain; (3) it affected substantial rights; and (4) it seriously affected the

      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                            2
fairness, integrity, or public reputation of the judicial proceedings. United States v.

Benz, 472 F.3d 657, 658-59 (9th Cir. 2006). Both issues are reviewed for plain

error.

         The first issue we consider is whether the district court erred in accepting

Betts' guilty pleas to armed bank robbery and use of a firearm during a crime of

violence because the factual basis was insufficient. When conducting a review for

sufficiency of the factual basis for a plea, “a court need not rely on the plea

colloquy alone and may conclude that a factual basis exists from anything that

appears on the record.” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th

Cir. 2009) (quotation omitted).

         The evidence before the district court establishes a sufficient basis for Betts’

guilty pleas to armed robbery and the firearm offense. Testimony was available to

the district court showing: (1) Betts called co-defendant Latondrea Sanders about

the planned robbery and where to meet; (2) Betts provided a gun to the robbers; (3)

Betts later collected his gun and a gun stolen during the robbery; and (4) the

robbers returned to Betts’ residence following the heist. The district court also

considered the contradictions between co-defendant Johnny Sabbath’s trial

testimony that Betts did not participate in the robbery with his earlier statements to

Federal Bureau of Investigation agents that Betts was the “mastermind” of the


                                             3
scheme.

      This evidence was all before the district court prior to Betts’ sentencing.

During Betts’ sentencing, the district court acknowledged the results of a

polygraph examination that Betts claims proves his innocence. The court found,

however, that this polygraph evidence was outweighed by other evidence

demonstrating Betts’ involvement, including Sabbath’s and Sanders’ statements.

A court needs only a strong factual basis for a guilty plea and need not be

convinced that there is sufficient evidence that an accused is guilty of the offense

charged beyond a reasonable doubt. United States v. Neel, 547 F.2d 95, 96 (9th

Cir. 1976). There was a strong factual basis sufficient to sustain Betts’ guilty pleas

and the denial of his motion did not constitute plain error. Even under an abuse of

discretion standard, the district court’s denial was proper, because its decision

cannot realistically be considered illogical, implausible, or lacking support in

inferences that may be drawn from the facts in the record. See United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).

       The second issue Betts raises is that the district court erred in denying his

motion to withdraw his guilty pleas because his lawyer failed to advise him of a

plausible due process defense. Betts contends that under United States v.

Castaneda, 9 F.3d 761 (9th Cir. 1993), and United States v. Hoskins, 282 F.3d 772,


                                          4
776 (9th Cir. 2002), he was a “slight” conspirator who could not foresee the use of

a firearm in the robbery. Under any reasoned analysis of the facts and

circumstances of this case, Betts’ involvement in the bank robbery was more than

“slight.” While a defendant does not have to demonstrate the defense would have

been successful, previous counsel’s alleged failure to inform Betts of a non-viable

defense would not plausibly lead a reasonable person to decide not to plead guilty.

Betts’ argument on this issue fails under both plain error and abuse of discretion

review.

      Having shown no “fair and just” reason to justify withdrawal of his guilty

pleas, we conclude the district court did not err in denying Betts’ motion.

      AFFIRMED.




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