                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 15 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50297

              Plaintiff - Appellee,              D.C. No. 3:10-cr-03044-WQH-5

  v.
                                                 MEMORANDUM*
CARLOS COSME,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                          Submitted December 11, 2014**
                              Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       Appellant Carlos Cosme appeals the district court’s decision to deny his

motion to withdraw his guilty plea. We have jurisdiction under 28 U.S.C. § 1291.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Cosme argued before the district court he should be permitted to withdraw

his guilty plea because (1) he did not understand he was admitting to factual

allegations in the plea agreement that supported his convictions, (2) his attorney

pressured him into admitting those allegations and into entering a guilty plea, and

(3) there was no factual basis to support his convictions. The district court held an

evidentiary hearing and found Cosme’s testimony to be incredible and his factual

contentions to be without merit.

      We review a denial of a motion to withdraw a guilty plea for abuse of

discretion. United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005). “A

defendant may withdraw a guilty plea after its acceptance but before sentencing if

the defendant shows ‘a fair and just reason for requesting the withdrawal.’” Id.

(quoting Fed. R. Crim. P. 11(d)(2)(B)). The district court found there was no

factual basis for any of Cosme’s proffered “fair and just” reasons for withdrawing

his guilty plea. And the district court’s factual findings were not “illogical,

implausible, or without support in inferences that may be drawn from the facts in

the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc). Therefore, the district court did not abuse its discretion in denying Cosme’s

motion.




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      Moreover, Cosme’s plea agreement has a waiver of appellate rights. “A

defendant’s waiver of his appellate rights is enforceable if (1) the language of the

waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is

knowingly and voluntarily made.” United States v. Rahman, 642 F.3d 1257, 1259

(9th Cir. 2011) (quoting United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.

2005)). We review “de novo whether a criminal defendant waived his right to

appeal.” United States v. Spear, 753 F.3d 964, 967 (9th Cir. 2014). But we review

the “district court’s findings for clear error.” United States v. Kaczynski, 239 F.3d

1108, 1114 (9th Cir. 2001).

      Cosme’s waiver is enforceable under Rahman’s two-part test. First, the

waiver encompasses Cosme’s right to appeal the district court’s order, as Cosme

agreed to waive “to the full extent of the law, any right to appeal or to collaterally

attack the conviction and any lawful restitution order.” See Rahman, 642 F.3d at

1259. Second, Cosme argues his waiver was involuntary for substantially the same

reasons he asked to withdraw his guilty plea, and the district court’s findings that

those reasons had no factual basis were not clear error. Cosme therefore

knowingly and voluntarily waived his right to appeal the district court’s order.

DISMISSED.




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