USA v. Young

1
Doc. 73; doc. 46.
2
Doc. 73.
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	) 	3:09-cr-00129 JWS
)
vs. 	) 	ORDER AND OPINION
)
ANDREW YOUNG, 	) 	[Re: 	Motion at Docket 119]
)
Defendant. 	)
)
I. MOTION PRESENTED
At docket 119, defendant Andrew Young (“Young”) moves to withdraw his guilty
plea. Plaintiff the United States of America opposes the motion at docket 121. Oral
argument was not requested and would not assist the court.
II. BACKGROUND
On October 27, 2010, Young pled guilty to production of child pornography in
violation of 18 U.S.C. § 2251 and receipt of child pornography in violation of 18 U.S.C. §
2252. 1 The court accepted his guilty pleas.2 Young has been represented by three
different attorneys. On June 10, 2011, Young sent a letter to his lawyer indicating
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3
Doc. 93. Copies of the letter were also sent to the court and the U.S. Attorney’s office.
Id.
4
Docs. 104, 107.
5
Doc. 118.
6
Fed. R. Crim. P. 11(d)(2)(B).
7United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009) (internal quotations
omitted).
8United States v. Jones, 472 F.3d 1136, 1141 (9th Cir. 2007).
9
Doc. 119 at 6.
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displeasure with his plea agreement. 3 On July 18, 2011, that lawyer filed a motion to
withdraw, which the court ultimately granted. 4 On the same day, Young–with the
assistance of his third and current lawyer–filed a motion to withdraw his guilty plea.
Young subsequently moved to amend that motion. 5 The present motion ensued.
III. STANDARD OF REVIEW
“A defendant may withdraw a plea of guilty . . . after the court accepts the plea
but before it imposes sentence if . . . the defendant can show a fair and just reason for
requesting the withdrawal.” 6 “The fair and just standard is generous and must be
applied liberally.” 7 “Fair and just reasons for withdrawal include inadequate Rule 11
colloquies, newly discovered evidence, intervening circumstances, or any reason for
withdrawing the plea that did not exist when the defendant entered his plea.” 8
IV. DISCUSSION
Young argues that the search warrant issued in this case only permitted seizure
of Young’s laptop and did not authorize the search of its hard drive or of other hard
drives discovered at Young’s residence. Young requests a sealed ex parte hearing so
that he can describe his “repeated requests [to former counsel] to challenge the
government’s search of his” hard drives.9 Young maintains that there was conflict
between him and his former lawyer regarding a potential motion to suppress.
Young does not argue that the Rule 11 colloquy was inadequate or that there is
any newly discovered evidence. Young does not identify any intervening circumstances
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10
____ F.3d ____, 2011 WL 327959, at *6 (9th Cir. Aug. 2, 2011).
11See Ensminger, 567 F.3d at 592 (“A marked shift in governing law that gives traction to
a previously foreclosed or unavailable argument may operate as a fair and just reason to
withdraw a guilty plea. A development in non-binding authority . . . does not constitute
‘intervening circumstances’ satisfying a defendant’s burden under Rule 11(d)(2)(B).”).
12See id.; doc. 105-1 at 1.
13
Doc. 112 at 11.
14See generally doc. 112.
15Ensminger, 567 F.3d at 593 (internal quotations omitted).
16Id. at 592.
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rendering withdrawal appropriate. Young does not point to any reason for withdrawal
that did not exist when he entered his guilty plea. In short, Young has not identified a
“fair and just” reason for withdrawing his plea.
To the extent Young argues that the dissenting opinion in United States v.
Stanley10 constitutes an intervening circumstance, his argument fails. The dissenting
opinion does not mark a change in the law and, in any event, is not binding.11 His
Fourth Amendment argument was available to him prior to his plea, and he discussed
the possibility of raising it with his lawyers. 12
At the change of plea hearing Young stated that he was satisfied with his
lawyer’s services. 13 The court informed Young of his rights pursuant to Rule 11 and
determined his competence. 14 “The extensive safeguards and substantial requirements
imposed on district courts in accepting pleas are designed to ensure that the criminal
defendant who pleads guilty understands exactly what the plea means.” 15 Here, Young
“made the informed choice to forego an available strategy and to knowingly,
intelligently, and voluntarily enter into a valid plea agreement.”16
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V. CONCLUSION
Because Young has not identified a fair and just reason to withdraw his guilty
plea, the motion at docket 119 is DENIED. Imposition of sentence will take place at
9:00 a.m. on November 29, 2011.
DATED at Anchorage, Alaska, this 4th day of September 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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