United States of America v. Doris E. Nelson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DORIS E. NELSON,
Defendant - Appellant.
No. 14-30248
D.C. No. 2:11-cr-00159-RHW-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Submitted February 4, 2016**
Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.
1. Nelson’s first motion to withdraw her guilty plea listed four “points on
which it is ‘plausible’ that given [new] information . . . , she would not have plead
[sic] guilty” to each count charged in the indictment. First, she claimed that a
FILED
JUN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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securities lawyer, Conrad Lysiak, had only recently become available to assist with
her defense. The district court reasonably rejected this contention, as the record
showed that Nelson “had access to Mr. Lysiak’s expertise” for “over two years
after the Indictment.” Second, Nelson claimed that, before she pled guilty, she did
not have ready access to a hard drive containing important evidence. The district
court reasonably found that her statements about the significance of the hard drive
were not credible because she had access to the bulk of the information contained
on the hard drive before pleading guilty. See United States v. Nostratis, 321 F.3d
1206, 1211 (9th Cir. 2003) (the district court has broad discretion to make
credibility determinations in evaluating a motion to withdraw).
Third, Nelson claimed she did not know until after she pled guilty that she
had a right to retain counsel. The district court reasonably found this claim
disingenuous because Nelson had previously acknowledged that she had such a
right. Finally, pointing to the fact that the district court grouped counts during the
plea colloquy, Nelson alleged that the colloquy contained a “less-than-clear
acknowledgment as to guilt on every count.” But Nelson failed to identify
particular counts for which she may not have acknowledged guilt had the district
court inquired about each count separately. Accordingly, the district court didn’t

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abuse its discretion in denying Nelson’s first motion to withdraw. See United
States v. Yamashiro, 788 F.3d 1231, 1236–37 (9th Cir. 2015).
2. Nelson filed a renewed motion to withdraw her guilty plea just before
sentencing. Her recently-retained counsel submitted an affidavit declaring that
when Nelson pled guilty, she didn’t realize she would be “exposed to a sentence
based upon all alleged losses—those within the indictment and those provable
under a preponderance standard.” The district court reasonably determined that
this contention wasn’t supported by the record. Nelson never alleged that her trial
counsel misled her about what her ultimate Guidelines calculation would be. She
also acknowledged at her plea hearing that she faced a maximum sentence of 2200
years. Finally, as the district court noted, the relevant conduct for sentencing
purposes was “by and large . . . set forth in the indictment,” which Nelson “had and
understood, according to her testimony” when pleading guilty. Nelson offered no
testimony contradicting these previous acknowledgments, and “[s]tatements made
by a defendant during a guilty plea hearing carry a strong presumption of
veracity.” Id. at 1237 (quoting United States v. Ross, 511 F.3d 1233, 1236 (9th
Cir. 2008)).

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page 4
Nor could Nelson withdraw her plea because she expected that she would
receive a three-point Guidelines reduction for pleading guilty. “A defendant
cannot withdraw his plea because he realizes that his sentence will be higher than
he had expected.” Nostratis, 321 F.3d at 1211. Accordingly, the district court
didn’t abuse its discretion in finding that Nelson’s sentencing expectations didn’t
constitute a “fair and just reason” for withdrawal. See Yamashiro, 788 F.3d at
1237.
Finally, Nelson’s counsel claimed her trial attorneys hadn’t been prepared
for trial at the time she pled guilty. But the district court had already determined,
in rejecting Nelson’s attempt to substitute counsel before pleading guilty, that “her
counsel [were] adequately prepared for trial.” Additionally, Nelson represented
during her plea hearing six days later that she was satisfied with her lawyers, and
both attorneys stated on the record that they were ready to go to trial, which was
set to begin the following week. Before us, Nelson also suggests that the district
court applied the wrong standard in rejecting this claim. But the order denying
Nelson’s original motion to withdraw her guilty plea supports the inference that the
district court applied the proper standard when rejecting her new claim.
Accordingly, the district court didn’t abuse its discretion in denying Nelson’s
renewed motion to withdraw her guilty plea.

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AFFIRMED.

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