                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10017

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00521-GMS-5

  v.
                                                 MEMORANDUM *
AL-QUAN ROMAIN LOYAL, AKA
Alquan Loyal,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                           Submitted January 14, 2013 **
                             San Francisco, California

Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.




        *
             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).
      Al-Quan Romain Loyal appeals the district court’s denial of his motion to

withdraw his guilty plea as well as the sentence imposed by the district court,

which included a career offender enhancement. We affirm.

      The parties are familiar with the facts of the case. Loyal and his co-

defendants were involved in a conspiracy to buy seven kilograms of cocaine from

an undercover agent of the DEA. When defendants were arrested, the agents seized

$104,000 in cash and an AK-47 that Loyal and his

co-conspirators had brought to the scene of the transaction.

      A grand jury indicted Loyal of conspiracy to possess with intent to distribute

more than 5 kilograms of cocaine; attempt to possess with intent to distribute more

than 5 kilograms of cocaine; possession of a firearm in furtherance of a drug

trafficking crime; and a felon in possession of a firearm. Loyal pled guilty to all

counts of the superseding indictment.

      Later, Loyal filed two pro se motions: a motion to withdraw his guilty plea

and a motion for change of counsel. The district court granted the second motion

and conducted a hearing on Loyal’s motion to withdraw from the guilty plea. At

the change-of-plea hearing, the district court engaged in a colloquy with Loyal

about whether he knowingly and voluntarily pled guilty, after which the district

court denied his motion to withdraw the guilty plea. The district court sentenced


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Loyal to 352 months in prison, which incorporated a career offender enhancement.

The sentence was within the sentencing guidelines range.

      With respect to the order denying withdrawal of the guilty plea, this court

reviews for abuse of discretion. United States. v. Ortega-Ascanio, 376 F.3d 879,

883 (9th Cir. 2004). With respect to sentencing, a “district court’s interpretation of

the Sentencing Guidelines is a question of law which is subject to de novo review,

while factual determinations made in the course of applying the guidelines are

reviewed for clear error.” United States v. Lindholm, 24 F.3d 1078, 1085 (9th

Cir.1994).

      A district court shall vacate the guilty plea when it is “‘shown to have been

unfairly obtained or given through ignorance, fear or inadvertence.’” United States

v. Rubalcaba, 811 F.2d 491, 493 (9th Cir.1987) (quoting Kercheval v. United

States, 274 U.S. 220, 224 (1927)). “The decision to allow a defendant to withdraw

his plea, however, lies within the discretion of the district court.” United States v.

Ruiz, 257 F.3d 1030, 1033 (9th Cir. 2001) (en banc).

      Loyal argues, as a fair and just reason to withdraw his guilty plea, that trial

counsel was under a conflict of interest that was not disclosed to him or waived by

him. This contention lacks merit. Trial counsel’s indictment created no conflict of

interest at the time of the plea because the indictment occurred months after Loyal


                                           3
had knowingly and voluntarily pled guilty. Loyal’s allegation that a conflict of

interest existed is undermined by the fact that the district court had made inquires

of Loyal as to whether he would waive any potential conflict and determined that

he had done so.

       Loyal’s claim of ineffective assistance of counsel also lacks merit. A

defendant claiming ineffectiveness must identify the acts or omissions of counsel

that are alleged not to have been the result of reasonable professional judgment and

“determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

Strickland v. Washington, 466 U.S. 668, 690 (1984). At the change-of-plea

hearing, Loyal testified that he understood at the time he entered the plea that a

lack of a plea agreement might subject him to a higher sentence. He testified that

he understood that the statute allowed the district court to sentence him to life

imprisonment. Loyal also testified that Moran had explained the strategy to him

and that he heard Moran tell the judge that the plea was a tactical decision. Loyal’s

guilty plea was not unfairly obtained, nor was it given through ignorance, fear or

inadvertence. The district court did not err in denying Loyal’s motion to withdraw

his guilty plea.




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      Loyal also contends that the district court erred in applying the U.S.S.G. §

4B1.1 career offender enhancement in determining his sentence. This contention

also lacks merit. Loyal satisfies all three requirements for the career offender

enhancement. He was thirty-five years of age at the time of the crimes for which he

is being sentenced. Two of his convictions are controlled substance offenses. He

has three prior convictions that qualify as either controlled substance offenses or

crimes of violence.

      Loyal also argues that the district court committed procedural error in

sentencing him without properly considering “national disparities” among

defendants. This claim also lacks merit. District courts are directed by statute to

consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C. §

3553(a)(6). In this instance, the district court judge stated that he must sentence

Loyal “in a way that is not disparate, unfairly disparate to the sentences that I give

to other defendants in similar circumstances.” A district court “cannot compare a

proposed sentence to the sentence of every criminal defendant who has ever been

sentenced before.” United States v. Treadwell, 593 F.3d 990, 1012 (9th Cir. 2010).

      Conclusion. We affirm the district court’s denial of Loyal’s motion to

withdraw his guilty plea. We also affirm his sentence.


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AFFIRMED.




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