                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 17 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50373

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00455-DDP-1

  v.
                                                 MEMORANDUM*
RICHARD A. MAIZE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                     Argued and Submitted December 6, 2012
                              Pasadena, California

Before: FISHER, BERZON, and NGUYEN, Circuit Judges.

       Richard Maize appeals his conviction for conspiracy to commit bank fraud

and loan fraud, 18 U.S.C. § 371, bank fraud, 18 U.S.C. § 1344(1), and making a

false statement on a tax return, 26 U.S.C. § 7206(1). He contends that the district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred by denying his motion to withdraw his guilty plea. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in determining that Maize’s

proffered reasons for withdrawing his plea were not—individually or

collectively—fair and just. An attorney’s “erroneous sentencing prediction . . .

does not entitle a defendant to withdraw his guilty plea,” United States v.

Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991) (citing United States v.

Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990)), other than in “exceptional

circumstances” where counsel “grossly mischaracterized” the possible sentence.

United States v. Briggs, 623 F.3d 724, 728–29 (9th Cir. 2010) (citing United States

v. Davis, 428 F.3d 802, 805–08 (9th Cir. 2005)) (internal quotation marks omitted).

The district court’s finding that Maize received “good, competent and sound

advice” about his sentencing exposure under various scenarios is supported by the

record. Maize’s counsel did not make a prediction about a likely sentence but

rather identified the applicable sentencing guidelines ranges.

      Maize’s “newly discovered” evidence could not “plausibly . . . have

motivated a reasonable person in the defendant’s position to not plead guilty had

he known about the evidence before pleading.” United States v. Showalter, 569

F.3d 1150, 1157 (9th Cir. 2009) (citing United States v. Garcia, 401 F.3d 1008,


                                          2
1011–12 (9th Cir. 2005)). This evidence had no bearing on Maize’s conviction for

tax fraud, which concerned his failure to report income, however obtained. Even

with respect to the conspiracy and bank fraud counts, the newly discovered

evidence at most corroborated what Maize already knew: that he did not realize

the full extent of the appraisal inflation. A defendant’s “belief that the government

had a weaker case than he originally thought does not constitute a fair and just

reason to withdraw his guilty plea.” Id. at 1156.

      Moreover, the newly discovered evidence does not call into question

Maize’s knowledge about the appraisal inflation and other material falsehoods,

such as the false verifications of deposit and straw buyers. Although Maize now

claims that he does not believe these falsehoods to be material, the district court

“could reasonably have chosen to credit [his] declarations made in open court

while under oath during the Rule 11 hearing over his subsequent testimony more

than two years later, especially since [he] knew his likely sentence at that time.”

United States v. Nostratis, 321 F.3d 1206, 1210 (9th Cir. 2003).

      Maize knew of the “newly discovered” evidence for approximately two

years before moving to set aside his plea. In finding that Maize had failed to

present a fair and just reason, the district court appropriately considered this delay.

See id. at 1211. Although a defendant’s motive to avoid a custodial sentence in


                                           3
seeking to withdraw his guilty plea does not foreclose relief if there is nonetheless

a fair and just reason for it, United States v. McTiernan, 546 F.3d 1160, 1168 (9th

Cir. 2008), no such reason is evident here.

AFFIRMED.




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