912 F2d 470 United States v. J Delahunty

912 F.2d 470

Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
Christopher J. DELAHUNTY, Defendant-Appellant.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 88-5277.

2

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1990.*
Decided Aug. 21, 1990.

3

Before POOLE and DAVID R. THOMPSON, Circuit Judges, and PRO, District Judge.**

4

MEMORANDUM***

5

Appellant Christopher J. Delahunty ("Delahunty") appeals the district court's denial of his motion to reconsider the denial of his motion to withdraw his guilty plea. Construing Delahunty's motion as one brought pursuant to 28 U.S.C. Sec. 2255, we conclude that the district court had jurisdiction to hear the motion, we have appellate jurisdiction, and we affirm.

PROCEEDINGS

6

On April 10, 1987 the Grand Jury returned a five-count indictment against Delahunty. Counts I through III charged Delahunty with mail fraud, see 18 U.S.C. Sec. 1341, Count IV charged Delahunty with wire fraud, see id. Sec. 1343, and Count V charged Delahunty with interstate transportation of stolen property, see id. Sec. 2314. Delahunty was arraigned on May 4, 1987, and entered a plea of not guilty to all five counts.

7

Delahunty appeared for trial on November 19, 1987. After a recess and consultation with his counsel, Delahunty withdrew his plea of not guilty to Count I and entered a plea of guilty to that Count. Following a colloquy with Delahunty pursuant to Fed.R.Crim.P. 11, the district court accepted his plea.

8

The court set Delahunty's sentencing date for January 19, 1988. Sentencing was continued to February 22, 1988, and then to March 28, 1988. At the March 28 hearing, Delahunty's appointed counsel, Marcia Brewer, orally moved for withdrawal of Delahunty's guilty plea. The court denied this request and continued the sentencing date to May 25, 1988.

9

At the May 25 hearing, Delahunty's counsel again orally requested withdrawal of the guilty plea. The court denied this motion and sentenced Delahunty to five years imprisonment. The court also ordered restitution pursuant to 18 U.S.C. Sec. 3579. On the government's motion, the court dismissed Counts II through V.

10

On July 11, 1988 Delahunty filed a postsentence motion for reconsideration of the court's denial of the motion to withdraw his guilty plea. The court heard this motion on July 25, 1988, and denied it. Delahunty filed his notice of appeal on August 4, 1988.

DISCUSSION

A. Jurisdiction

11

The government contends the district court had no jurisdiction over Delahunty's motion for reconsideration. We agree.

12

Under Fed.R.App.P. 4(b), Delahunty had ten days from the date of sentencing within which to appeal the district court's denial of his motion to withdraw his guilty plea. Alternatively, "a criminal defendant's motion for reconsideration [will] extend the time within which a notice of appeal must be filed, [if the motion is] filed within the period during which a timely notice of appeal from the underlying order could have been filed, i.e., 10 days." United States v. Lefler, 880 F.2d 233, 235 (9th Cir.1989).

13

Delahunty filed his motion for reconsideration more than ten days after he was sentenced. While "motions for reconsideration ... are timely presented if 'filed within the original period for review,' " United States v. Rubio, 727 F.2d 786, 799 (9th Cir.1983) (quoting United States v. Jones, 608 F.2d 386, 390 (9th Cir.1979)), " 'late petitions for reconsideration of orders entering judgment' " are " 'beyond the jurisdiction of [the district] court.' " United States v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989) (quoting United States v. Cook, 670 F.2d 46, 48 (5th Cir.), cert. denied, 456 U.S. 982 (1982)).

14

The district court had no jurisdiction to hear Delahunty's motion as a motion for reconsideration. However, because Delahunty could have presented in a motion brought pursuant to 28 U.S.C. Sec. 2255 the same claims he presented in his motion for reconsideration, and since the district court addressed the merits of the claims, we treat the motion for reconsideration as a motion under 28 U.S.C. Sec. 2255. Cf. Sica v. United States, 454 F.2d 281, 281 (9th Cir.1971) (per curiam).

B. Merits

1. Rule 11

15

Delahunty argues that the district court violated Fed.R.Crim.P. 11(f)1 by failing to make an adequate inquiry into the factual basis for his plea. Specifically, Delahunty contends the record fails to reflect that "intent to deceive" is an element of the court to which he pleaded guilty or that he admitted having such intent during the time specified in the indictment.

16

It is unclear whether the government had to prove such an intent.2 Even assuming it did, Delahunty has failed to allege that he was actually unaware of the intent element, see United States v. Bigman, No. 88-1703, slip op. 6127, 6130-31 (9th Cir. June 18, 1990), or "that if he had been properly advised he would not have pleaded guilty." Jaramillo-Suarez, 857 F.2d 1368, 1371 n. 2. (9th Cir.1988).

17

"A defendant alleging a Rule 11 violation in a section 2255 motion must establish that the violation amounted to constitutional or jurisdictional error, or that the error resulted in a complete miscarriage of justice or in a proceeding inconsistent with the demands of fair procedure." Id. Delahunty has failed to make this required showing.

2. Voluntariness

18

Delahunty contends his plea was involuntary because he did not understand the consequences of his plea and believed he was making a civil compromise. He argues his "confused mental state was no doubt caused by the large dosages of prescription medication and his counsel's admission that she had not spent enough time on the case reviewing [his] defense."

19

The alleged "admission" of Delahunty's counsel that she had not spent enough time on his case lends no support to Delahunty's contention that he thought he was entering into a civil compromise. He does not allege his counsel told him this was what he was doing. Nor does he provide any rational explanation why he thought he was entering a civil compromise. Accordingly, we reject this contention.

20

As to Delahunty's capacity to understand the nature of the proceedings, his physician, Dr. Maxfield, filed a declaration stating that Delahunty was taking twice the amount of Dilantin ordinarily prescribed. Dr. Maxfield also stated his belief that such a dosage affected Delahunty's ability to comprehend the nature and significance of his acts at the time of the guilty plea.

21

Before the May 25, 1988 sentencing hearing, the district court ordered Delahunty examined by Dr. Faerstein. In his report which he made following this examination, Dr. Faerstein stated that although Delahunty had certain deficiencies in his memory of specific details, his "mental state reflected no gross impairment in the areas of mood, affect, reasoning, behavior or communication." Dr. Faerstein also expressed his opinion that Delahunty understood the rights he was waiving by pleading guilty and the consequences of his plea. At the time of his examination by Dr. Faerstein, Delahunty was taking the same dosage of Dilantin he had been taking at the time he entered his guilty plea.

22

We have independently reviewed the record and the evidence presented to the district court. See Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.1989) ("The voluntariness of a guilty plea is a question of law not subject to deferential review."). We conclude that Delahunty has failed to meet his burden of showing that he did not understand the consequences of his guilty plea. Cf. McKinney v. United States, 487 F.2d 948, 949 (9th Cir.1973) (noting that "when the issue of the defendant's competency to stand trial is raised in a Sec. 2255 motion, the burden is upon the defendant to prove that he was not mentally competent to stand trial").

23

Delahunty also argues that his guilty plea was involuntary due to coercion by his counsel. In moving to withdraw this plea, Delahunty's counsel stated that in her "professional opinion" Delahunty's defenses were "not viable," but she felt that she had "put a little undue pressure on him in order to enter the plea, and ... that the pressure may have caused him to enter the plea." The district court denied the motion.

24

While "[c]oercive acts by third parties unrelated to the government ... may invalidate guilty pleas," Bostic, 884 F.2d at 1272, "[a]cts that might constitute coercion if done by the court or a prosecutor may not rise to that level if done by others." Iaea v. Sunn, 800 F.2d 861, 867 (9th Cir.1986). "Mere advice or strong urging by third parties to plead guilty based on the strength of the state's case does not constitute undue coercion." Id.

25

Delahunty's counsel never explained what "coercion" she allegedly applied to Delahunty to get him to plead guilty. Delahunty made no showing that his counsel threatened him in any way (cf. id. at 866-68 (retained counsel threatened to withdraw if defendant refused to plead guilty)), or that she did anything other than advise Delahunty of the strength of the government's case and advise him to plead guilty. In exchange for Delahunty's plea to Count I, the government dismissed Counts II through V. These circumstances do not suggest coercion. Rather, they suggest reasonable advise by Delahunty's counsel who held the professional opinion that he had no viable defense to the charges against him.

26

We conclude that Delahunty's guilty plea was voluntarily entered.

27

AFFIRMED.

*

the panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

This rule provides:

Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

Fed.R.Crim.P. 11(f).

2

We have noted that to prove mail fraud, "[i]t is enough ... that the government charge and the jury find either that the victim was actually deprived of money or property or that the defendant intended to defraud the victim of the same." United States v. Utz, 886 F.2d 1148, 1151 (9th Cir.1989), cert. denied, 58 U.S.L.W. 3817 (U.S. June 25, 1990) (No. 89-1870)