                                                                         FILED
                           NOT FOR PUBLICATION
                                                                          FEB 20 2015
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 13-50371

             Plaintiff - Appellee,              D.C. No. 2:11-cr-50(A)-GAF-12

  v.
                                                MEMORANDUM*
MARGARITO VARGAS, aka Suki,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                    Gary A. Feess, District Judge, Presiding

                    Argued and Submitted December 11, 2014
                              Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       ** The Honorable William E. Smith, Chief United States District Judge for
the District Rhode Island, sitting by designation.
       Appellant Margarito Vargas appeals the district court’s denial of his motion

to withdraw his guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B).

Appellant contends that he was coerced into pleading, and did not understand that

he was agreeing to a binding 25-year sentence. We affirm.

       “We review for abuse of discretion a district court’s denial of a motion to

withdraw a guilty plea.” United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir.

2009). Factual findings that “underlie” the district court’s decision are reviewed

for clear error. Id.

       Federal Rule of Criminal Procedure 11(d)(2)(B) permits a defendant to

withdraw his plea upon showing “a fair and just reason for requesting the

withdrawal.” The defendant bears the burden of establishing that such a reason

exists. See, e.g., United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005).

“While the defendant is not permitted to withdraw his guilty plea ‘simply on a

lark,’ . . . the ‘fair and just’ standard is generous and must be applied liberally.”

United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008) (quoting United

States v. Hyde, 520 U.S. 670, 676-77 (1997)).

       1. The district court committed no clear error in finding that Vargas was not

coerced into pleading guilty. Coercion may form a proper basis for permitting a

defendant to withdraw a guilty plea. United States v. Caro, 997 F.2d 657, 659-60


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(9th Cir. 1993). Whether Vargas was coerced must be examined from his

subjective state of mind. See Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986).

Vargas advances three arguments to support his position that he was coerced: 1)

that his trial attorney pressured him into accepting a plea agreement in

contravention of Vargas’s Fifth Amendment rights; 2) that his trial attorney

provided inadequate legal advice, rendering the plea invalid; and 3) that his plea

was a package deal involving his brothers, rendering it involuntary. The district

court considered all three arguments and properly rejected them.

      First, the record reveals that trial counsel advised Vargas in a

straightforward manner that pleading guilty was in his best interest. Such a frank

assessment of Vargas’s predicament does not amount to coercion. Indeed, trial

counsel would have been derelict in his duty to Vargas had he not provided an

honest opinion of Vargas’s chances of success if he took his case to trial.

      Second, trial counsel provided the requisite “necessary and accurate

information” when advising Vargas about pleading guilty. Iaea, 800 F.2d at 865.

That trial counsel used a paralegal and investigators to prepare the case and

communicate with Vargas is unremarkable. Here, trial counsel filed a series of

motions, strategically did not join motions he thought were harmful, reviewed

evidence with his client, and advised him of the benefits and pitfalls associated


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with pleading guilty. He also arrived at court on the first day of trial ready to

proceed. Vargas failed to present a plausible argument for why this conduct was

deficient, or why its deficiency took away the voluntary nature of his plea.

      Third, Vargas asserts that the package nature of his plea renders it

involuntary, especially when we consider that Vargas’s brothers were the

codefendants subject to the package plea agreement. The district court did not

clearly err in concluding that Vargas was not coerced in light of its colloquy with

Vargas and the subsequent hearing on his motion to withdraw his guilty plea.

Package plea deals are permissible. United States v. Wheat, 813 F.2d 1399, 1405

(9th Cir. 1987). When dealing with a package deal, the district court must engage

in a “‘more careful examination’ of [the] voluntariness” of the plea. Caro, 997

F.2d at 660 (quoting United States v. Castello, 724 F.2d 813, 815 (9th Cir.), cert.

denied, 467 U.S. 1254 (1984)).

       Here, the district court knew that Vargas’s plea bargain was part of a

package deal and inquired during the Rule 11 plea colloquy whether Vargas had

been coerced into changing his plea. Vargas stated he had not. It would have been

preferable for the district court to ask Vargas specifically whether the package deal

benefitting his family members coerced him into pleading guilty. However, the




                                           4
hearing held by the district court following Vargas’s motion to withdraw

confirmed that it had not.

      In reaching its conclusion on this issue, the district court rejected an affidavit

from Vargas and instead relied upon Vargas’s Rule 11 colloquy and the testimony

from Vargas’s trial attorney and trial counsel for one of Vargas’s codefendants. It

committed no error in doing so. See Castello, 724 F.2d at 815; see also United

States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001) (“We give ‘substantial

weight’ to [a defendant’s] in-court statements, . . . and we accept [a] district court’s

findings . . . [unless] firmly convinced they are wrong.” (quoting United States v.

Mims, 928 F.3d 310, 313 (9th Cir. 1991)). In addition, the district court noted

Vargas’s demeanor at his change of plea hearing and found that Vargas did not

display “the slightest reluctance, hesitance, or confusion during the proceedings.”

Thus, the district court did not clearly err in finding that Vargas was not

subjectively coerced into pleading guilty. United States v. Jimenez-Dominguez,

296 F.3d 863, 869 (9th Cir. 2002) (“Although it is difficult to probe the highly

subjective state of mind of a criminal defendant, the best evidence of his

understanding when pleading guilty is found in the record of the Rule 11

colloquy.”).




                                           5
        2. The district court did not commit clear error in finding that Vargas

understood he faced 25 years in prison. Fair and just reason to withdraw a plea

may exist where a defendant is misinformed about the basic sentence range he is

facing, United States v. Toothman, 137 F.3d 1393, 1399-1400 (9th Cir. 1998), but

where, as here, the record shows that the defendant understood the sentence he was

facing, withdrawal is only permitted in “exceptional circumstances,” United States

v. Briggs, 623 F.3d 724, 729 (9th Cir. 1998). Because the district court did not

clearly err in concluding that Vargas understood that he would be sentenced to 25

years, it was not an abuse of discretion to deny his motion to withdraw his guilty

plea.

        Vargas claims that he did not subjectively understand that he would be

sentenced to 25 years in prison if he pled guilty, but instead thought his sentence

was capped at 25 years with the opportunity to argue for less. Vargas’s trial

counsel testified that he explained to Vargas that the plea agreement called for a

25-year sentence with no opportunity to argue for less. The differences in a

binding plea and a capped plea were explained to Vargas on numerous occasions.

Additionally, Vargas does not dispute that the Assistant United States Attorney

pointed to each defendant individually and stated exactly the term of years each

would receive upon pleading guilty.


                                            6
      Finally, the district court appropriately relied upon Vargas’s plea colloquy,

where he said he understood the nature of his plea and did not have any questions.

In this colloquy, Vargas acknowledged that he had gone through the agreement

line by line and had no questions about it. The colloquy represents “strong

evidence” that Vargas understood the 25-year term. Briggs, 623 F.3d at 728.

      AFFIRMED.




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