US v. Davis
No. 04-50030 (6-9-05). The 9th wrestles with what is a "fair and just" reason to withdraw from a plea. Here, defendant was a 72 year old doctor that was charged with distributing Dilaudid. On the eve of trial, he entered a plea that had a maximum sentence of 8 years. The guidelines came back much higher, and the gov't indicated that it was pressing for a high guideline sentence (although the actual sentence was limited to 8 years). The defendant sought new counsel, was denied, and then scraped together funds to get new counsel, who then moved to withdraw from the plea. The district court found at a hearing that the first defense counsel had advised defendant that his sentence could range from probation to 8 years. The court found that counsel had "grossly mischaracterized" defendant's counsel, but still denied his motion to withdraw. On appeal, the 9th reversed and remanded, holding that the standard of "fair and just" reason didn't necessarily require a prejudice prong. In dissent, Callahan argues that prejudice was a factor, and that the 9th's precedent has become a patchwork. [Note: troubling in this decision -- written by District Court Judge Charles Breyer -- is the fact that the sentence range was sin fact probation to 8 years. Sure it would have required a departure, but given the age and other considerations, it wasn't out of the realm of possibility. How does this play out in light of Booker, which came out after? Is counsel suppose to "guess" what the sentence will be and downplay the other possibilities? This may be a case that, in the end, results in a bad result for the defendant, and makes defense counsel's job to provide effective assistance that much more difficult).