Free Motion to Withdraw Plea of Guilty - District Court of California - California

Case 3:07-cr-03117-LAB
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STEVEN L. BARTH California Bar No. 224185 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 San Diego, California 92101-5008 Telephone: (619) 234-8467 Attorneys for Defendant Natal

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE LARRY A. BURNS) UNITED STATES OF AMERICA, Plaintiff, v. EDGAR LEONEL NATAL, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 07CR3117-LAB

STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

I. STATEMENT OF FACTS1 On October 16, 2007, a complaint was filed against Mr. Natal charging him with importation of a controlled substance, marijuana (21 U.S.C. §§ 952 and 960). See CR at 1. On November 15, 2007, Mr. Natal waived indictment and was charged, via information, with importation of marijuana (21 U.S.C. §§ 952 and 960). See CR at 7. On December 27, 2007, Mr. Natal entered a guilty plea to the one count information. See CR at 13. His guilty plea was taken by the Honorable Judge Adler, United States

magistrate judge. See id. Judge Adler issued a recommendation that the plea of guilty be accepted. See CR at 16. As of the filing of this motion the district court has not accepted Mr. Natal's guilty plea. See CR

"CR" refers to the clerk's record. 07CR3117

Case 3:07-cr-03117-LAB
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generally. Mr. Natal now wishes to withdraw his guilty plea and hereby does so (and requests and order reflecting as much) with the filing of this motion. II. Pursuant to the Federal Rules of Criminal Procedure, Mr. Natal has an absolute right to withdraw a guilty plea at any time before the district court has accepted such plea. The rule reads in pertinent part: A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason... Fed. R. Crim. P. 11(d)(1). The language of this section is plain, nonetheless, it is worth noting that the Ninth Circuit had previously adopted its plain meaning under old Rule 32(e). See United States v. AlvarezTautimez, 160 F.3d 573, 576 (9th Cir. 1998) (holding that then rule 32(e)'s "fair and just" standard did not apply to a defendant who attempts to withdraw a guilty plea prior to district court acceptance and that defendant had an absolute right to withdraw guilty plea before district court accepted it) (cited with approval by United States v. Reyna-Tapia, 328 F.3d 1114,1121 (9th Cir. 2003)). Other circuits that have analyzed the current language of Rule 11(d) have also adopted its plain meaning. See e.g. United States v. Jones, 472 F.3d 905, 908 (D.C. Cir. 2007) (finding that under rule 11(d) the district court has "no discretion to deny a pre-acceptance withdrawal of a guilty plea"); and United States v. Head, 340 F.3d 628, 630 (8th Cir. 2003) (holding that "[u]nder rule 11(d), a criminal defendant is allowed to withdraw a guilty plea for any reason (or no reason at all) until the time the trial court accepts the plea"). Here, the district court has not yet accepted Mr. Natal's guilty plea. As such, he is free to withdraw it for any reason or no reason at all. He hereby withdraws his guilty plea. III. CONCLUSION For the foregoing reasons, Mr. Natal respectfully requests that the Court grant the above motion. Respectfully submitted, /s/ Steven L. Barth STEVEN L. BARTH Federal Defenders of San Diego, Inc. Attorneys for Mr. Natal

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