                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10274

                Plaintiff-Appellee,             D.C. No.
                                                1:16-cr-00516-SOM-1
 v.

JESSE MINOAKA KANESHIRO,                        MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan O. Mollway, District Judge, Presiding

                              Submitted July 7, 2020**
                                 Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Defendant-Appellant Jesse Kaneshiro appeals from the district court’s denial

of his motion to withdraw his guilty plea. Kaneshiro contends that the district

court erred in failing to warn Kaneshiro not to rely on his attorney’s Sentencing

Guidelines recommendation, thereby abusing its discretion in denying Kaneshiro’s


      *
             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).
motion. We have jurisdiction under 28 U.S.C. § 1291. As the parties are familiar

with the facts, we do not recount them here. We affirm.

      Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure allows a

defendant to withdraw a guilty plea if “the defendant can show a fair and just

reason for requesting the withdrawal.” See United States v. Yamashiro, 788 F.3d

1231, 1236-37 (9th Cir. 2015). While it is a defendant’s burden to demonstrate a

fair and just reason for withdrawal, id. at 1237, “the fair and just standard is

generous and must be applied liberally.” United States v. Bonilla, 637 F.3d 980,

983 (9th Cir. 2011) (internal quotation marks and citation omitted). We review a

district court’s denial of a motion to withdraw a guilty plea for abuse of discretion.

See Yamashiro, 788 F.3d at 1236.

      While inadequate plea colloquies and “[e]rroneous or inadequate legal

advice” are both examples of fair and just reasons for plea withdrawal, here,

Kaneshiro failed to satisfy his burden on both fronts. Bonilla, 637 F.3d at 983

(citation omitted); see also United States v. Ensminger, 567 F.3d 587, 590-91 (9th

Cir. 2009) (“[F]air and just reasons for withdrawal include inadequate Rule 11 plea

colloquies[.]”) (internal quotation mark and citation omitted). Under Rule 11, a

district court is obligated to “engage the defendant in a colloquy at the time the

plea is entered” to establish “that the defendant is acting voluntarily, with an

understanding of the charges which have been leveled at him, and upon a factual


                                           2
basis which supports his conviction.” United States v. Pena, 314 F.3d 1152, 1155

(9th Cir. 2003) (quoting United States v. Jimenez-Dominguez, 296 F.3d 863, 866

(9th Cir. 2002)). Here, the district court’s colloquy contained all the information

required under Rule 11(b)(1), including information about the maximum and

minimum penalty Kaneshiro faced and an outline of the Guidelines calculation

process. The district court also obtained assurances from Kaneshiro that his plea

was not based on any promise. While the district court did not explicitly tell

Kaneshiro that he could not rely on a sentencing prediction made by his attorney,

Kaneshiro cites no controlling authority that requires a court to do so.

      Additionally, the district court did not err in determining that Kaneshiro

failed to demonstrate that defense counsel provided him with “[e]rroneous or

inadequate legal advice.” Bonilla, 637 F.3d at 983 (citation omitted). Kaneshiro’s

declaration was insufficient to overcome his prior testimony that he was not

promised any benefit for pleading guilty. Further, the district court reasonably

credited defense counsel’s declaration stating that he had not promised Kaneshiro a

120-month sentence—particularly after warning Kaneshiro that he would need

further evidence or testimony to rebut that declaration, which Kaneshiro

nevertheless declined to offer. See United States v. Nostratis, 321 F.3d 1206, 1211

(9th Cir. 2003).




                                          3
      Because Kaneshiro failed to demonstrate a fair and just reason for

withdrawal, the district court did not abuse its discretion in denying Kaneshiro’s

motion to withdraw his guilty plea. See Yamashiro, 788 F.3d at 1236-37.

      AFFIRMED.




                                          4
