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    This document summarizes a court case in which Jose Treto pleaded guilty to drug charges but later filed a motion to withdraw his guilty plea. The district court denied the motion. Treto appealed. The appeals court summarizes the district court proceedings, in which Treto claimed his attorney told him he would receive probation, but the attorney and a letter denied making guarantees. The appeals court also discusses the seven factors courts consider for plea withdrawals and finds the district court properly applied them, determining the plea was knowing and voluntary. The appeals court ultimately affirms the lower court's denial of Treto's motion to withdraw his guilty plea.

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    Filed: Patrick Fisher

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    This document summarizes a court case in which Jose Treto pleaded guilty to drug charges but later filed a motion to withdraw his guilty plea. The district court denied the motion. Treto appealed. The appeals court summarizes the district court proceedings, in which Treto claimed his attorney told him he would receive probation, but the attorney and a letter denied making guarantees. The appeals court also discusses the seven factors courts consider for plea withdrawals and finds the district court properly applied them, determining the plea was knowing and voluntary. The appeals court ultimately affirms the lower court's denial of Treto's motion to withdraw his guilty plea.

    Original Description:

    Filed: 2004-01-05 Precedential Status: Non-Precedential Docket: 03-3093

    Original Title

    United States v. Treto, 10th Cir. (2004)

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    This document summarizes a court case in which Jose Treto pleaded guilty to drug charges but later filed a motion to withdraw his guilty plea. The district court denied the motion. Treto appealed. The appeals court summarizes the district court proceedings, in which Treto claimed his attorney told him he would receive probation, but the attorney and a letter denied making guarantees. The appeals court also discusses the seven factors courts consider for plea withdrawals and finds the district court properly applied them, determining the plea was knowing and voluntary. The appeals court ultimately affirms the lower court's denial of Treto's motion to withdraw his guilty plea.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    34 views6 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which Jose Treto pleaded guilty to drug charges but later filed a motion to withdraw his guilty plea. The district court denied the motion. Treto appealed. The appeals court summarizes the district court proceedings, in which Treto claimed his attorney told him he would receive probation, but the attorney and a letter denied making guarantees. The appeals court also discusses the seven factors courts consider for plea withdrawals and finds the district court properly applied them, determining the plea was knowing and voluntary. The appeals court ultimately affirms the lower court's denial of Treto's motion to withdraw his guilty plea.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JAN 5 2004

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,

    No. 03-3093
    (District of Kansas)
    (D.C. No. 02-CR-10110-WEB)

    v.
    JOSE A. TRETO,
    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before SEYMOUR, MURPHY, and OBRIEN, Circuit Judges.
    I.

    Factual Background
    On November 4, 2002, appellant Jose A. Treto pleaded guilty to one count

    of attempting to distribute methamphetamine, in violation of 21 U.S.C. 841.


    Pursuant to the terms of the plea agreement, Treto acknowledged that he had not
    yet provided substantial assistance to the government. The agreement further
    provided, however, that the government would file a motion pursuant to U.S.S.G.
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    5K1.1 if it determined before sentencing that Treto did provide substantial


    assistance.
    Treto also signed a Petition to Enter Plea of Guilty which contained the
    following statement,
    My lawyer informed me that the plea of GUILTY could subject me
    to a mandatory minimum sentence of not less than 10 years
    imprisonment (if applicable) and to a maximum punishment which,
    as provided by law, is life to be followed by a term of supervised
    release of at least 5 years (Title 21 Drug Offense) and not to exceed
    5 years . . . .
    At the change of plea hearing, the district court reviewed this provision with
    Treto stating, Your lawyer has informed you that a plea of guilty to Count 1 of
    the superseding indictment could subject you to a mandatory minimum
    punishment of ten years imprisonment and maximum possible punishment of life
    imprisonment . . . . Do you understand that? Treto responded, Yes. After the
    government summarized the terms of the plea agreement, the court then addressed
    Treto as follows,
    This agreement says you understand that the maximum sentence that
    may be imposed as to Count 1 of the indictment is no more than life
    imprisonment. Counsel announced that theres a mandatory
    minimum of ten years in this case, didnt he? You understand that?
    Treto responded, Yes, Your Honor. Treto also stated under oath that he had
    delivered a package containing more than fifty grams of methamphetamine to an
    individual named Ronald Howe. After questioning Treto further about the
    -2-

    voluntariness of his guilty plea, the district court found that the plea was made
    freely and voluntarily and accepted it.
    A sentencing hearing was set for January 13, 2003. On that date, however,
    Treto appeared before the district court and requested a continuance to give him
    more time to assist the government. The court granted both that continuance and
    another requested by Treto on January 22, 2003. One week later, Tretos attorney
    filed a motion to withdraw from the case. The motion was granted on February 3,
    2003 and new counsel was appointed. One month later, Treto filed a motion to
    withdraw his guilty plea. The district court denied the motion and sentenced
    Treto to 120 months imprisonment. Treto filed a timely notice of appeal from
    the denial of his motion to withdraw his plea. 1
    II.

    Discussion
    This court reviews the denial of a motion to withdraw a guilty plea for

    abuse of discretion. United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997).
    However, we review de novo the question of whether the plea was knowing and
    voluntary. United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000).
    Pursuant to Rule 11(d) of the Federal Rules of Criminal Procedure, a defendant
    who has not yet been sentenced may be permitted to withdraw his guilty plea if he
    We admonish defense counsel for failure to adhere to 10th Cir. R.
    28.2(A)(1) which requires that he attach to appellants brief a copy of the district
    courts written order denying appellants motion to withdraw his guilty plea.
    1

    -3-

    can show a fair and just reason. We have held that the district court should
    consider the following factors when determining whether a defendant has
    demonstrated a fair and just reason: (1) whether the defendant has asserted his
    innocence, (2) prejudice to the government, (3) delay in filing defendants
    motion, (4) inconvenience to the court, (5) defendants assistance of counsel, (6)
    whether the plea is knowing and voluntary, and (7) waste of judicial resources.
    United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993).
    After Treto filed the motion to withdraw his guilty plea, the district court
    held an evidentiary hearing. Testimony was given by Treto, Wichita police
    detective Bryan Martin, and attorney Mark Schoenhofer. Schoenhofer represented
    Treto at the change of plea hearing. Treto testified that Schoenhofer
    told him he would receive probation if he entered a guilty plea and did not discuss
    the statutory minimum mandatory sentence with him. He also stated that he
    reviewed the plea agreement with Schoenhofer for less than one minute and did
    not understand when he signed it that the government was not obligated to file a
    5K1.1 motion on his behalf. Treto further testified that he signed the plea
    agreement and testified falsely at the change of plea hearing because he was
    directed to do so by Schoenhofer and because he did not understand the questions
    posed by the court. On cross-examination, Treto admitted that he received a letter
    from Schoenhofer three days before the change of plea hearing which stated,
    -4-

    This is a case where the mandatory minium is ten years. . . . That means that ten
    years is the minimum that you will receive. The letter further stated, There is
    no guarantee what your sentence will be if you enter a plea agreement with the
    government, and there will be no guarantees if you will receive a reduction of
    your sentence at all.
    Schoenhofer then took the stand and testified that he did not tell Treto that
    his guilty plea would guarantee a sentence of probation. Schoenhofer testified
    that he told Treto he was facing a mandatory minimum of ten years and that there
    was no guarantee the government would file a 5K1.1 motion if he pleaded
    guilty. He further testified that he reviewed the written plea agreement with Treto
    line by line before the change of plea hearing.
    The district court denied Tretos motion. The court made factual findings
    and discussed each of the seven factors set forth in Gordon. Specifically, the
    court found that Treto was truthful when he told the court at the change of plea
    hearing that he was guilty. The court then found that allowing Treto to withdraw
    his plea would prejudice the government and would inconvenience the court. It
    further found that Treto had the benefit of counsel and concluded that
    Schoenhofer did not render ineffective assistance to Treto. Thus, Tretos plea
    was knowing and voluntary. Finally, the court found that Treto delayed filing the

    -5-

    motion to withdraw his plea until he learned that the government did not intend to
    file a 5K1.1 motion.
    In this appeal, Treto argues that consideration of the seven factors leads to
    the conclusion that he demonstrated a fair and just reason for the withdrawal of
    his plea agreement. We disagree. The district court properly applied the Gordon
    factors and correctly concluded that Schoenhofer did not render ineffective
    assistance to Treto. Accordingly, we conclude that the district court did not abuse
    its discretion when it denied Tretos motion to withdraw his guilty plea.
    III.

    Conclusion
    Upon review of the district courts order, the parties briefs, and the entire

    appellate record, this court affirms the denial of Tretos motion to withdraw his
    guilty plea for substantially those reasons set out in the district courts order dated
    March 18, 2003.
    ENTERED FOR THE COURT

    Michael R. Murphy
    Circuit Judge

    -6-

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