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United States v. Davis

United States District Court, D. Nevada

January 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRONE DAVIS, Defendant.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently before the court is Magistrate Judge Leen's report and recommendation (“R&R”), recommending that defendant Tyrone Davis's motions to withdraw guilty plea (ECF Nos. 255, 264) and the government's motion to strike (ECF No. 256) be denied. (ECF No. 293). Defendant filed an objection to the R&R (ECF No. 298), to which the government responded (ECF No. 306).

         I. Facts

         On August 7, 2012, a federal grand jury returned an indictment (ECF No. 1) against defendant. During his initial appearance and arraignment, Davis pled not guilty to the charges and was detained pending trial. (ECF Nos. 11, 13). On August 13, 2013, a federal grand jury returned a superseding indictment (ECF No. 46) charging defendant with three counts: (1) possession of a firearm by a convicted felon in violation 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2) possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) possession of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(1)(A)(i). Defendant was arraigned on the superseding indictment and pled not guilty on all three counts. (ECF No. 53).

         After multiple stipulated continuances and changes of defense counsel, the court set trial for June 6, 2016. (ECF No. 221). After a jury was empaneled, defendant withdrew his not guilty plea and entered a plea of guilty, resulting in the court's vacating the trial. (ECF No. 245).

         On July 5, 2016, defendant filed a pro se motion to withdraw guilty plea. (ECF No. 255). On July 8, 2016, the government filed a motion to strike defendant's pro se motion. (ECF No. 256). On August 16, 2016, defense counsel filed another motion to withdraw guilty plea on behalf of defendant. (ECF No. 264). The government filed a response (ECF No. 265), to which defendant replied (ECF No. 266).

         On November 10, 2016, the magistrate entered the instant R&R, recommending that defendant's motions to withdraw guilty plea (ECF Nos. 255, 264) and the government's motion to strike (ECF No. 256) be denied. (ECF No. 293). After reviewing and considering the transcript of the change of plea hearing and setting forth a detailed outline of the record, Magistrate Judge Leen concluded that defendant's guilty plea was knowing, voluntary, and intelligent. (ECF No. 293).

         Defendant makes two objections to the R&R. (ECF No. 298). The court will address each in turn.

         II. Legal Standard

         A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-2. Where a party timely objects to a magistrate judge's report and recommendation, the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of a magistrate judge within fourteen (14) days from the date of service of the findings and recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a motion within fourteen (14) days after service of the motion.

         III. Discussion

         A defendant may withdraw his or her guilty plea only if the defendant “show[s] a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The decision to allow a defendant to withdraw his plea . . . lies within the discretion of the district court.” United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). Although the defendant bears the burden of establishing a fair and just reason, “the ‘fair and just' standard is applied liberally.” United States v. Yamashiro, 788 F.3d 1231, 1237 (9th Cir. 2015) (citing United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011)).

         “It is well-established that a defendant has no right to withdraw his guilty plea, and that a withdrawal motion is committed to the sound discretion of the district court.” United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988) (collecting cases); see also Yamashiro, 788 F.3d at 1236 (“The decision whether to permit the withdrawal of a plea is solely within the discretion of the district court.” (quoting United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009))). A defendant may not withdraw his guilty plea “simply on a lark.” United States v. Hyde, 520 U.S. 670, 676-77 (1997). However, the district court must review each case in ...


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