In federal criminal cases, the only motion to withdraw a plea is made prior to judgment under Rule 32(e) of the Federal Rules of Criminal Procedure, which allows the court the discretion to withdraw the plea before sentence is imposed for any “fair and just reason.”[28]

[28] Fed. R. Crim. P. 32(e); United States v. Hyde, 520 U.S. 670 (1997); United States v. Burdeau, 168 F.3d 352 (9th Cir. 1999); United States v. Soriano-Hernandez, 310 F.3d 1099 (8th Cir. November 26, 2002) (district court made reasonable determination that defendant’s failure to raise statute of limitations defense was not fair and just reason for the withdrawal of guilty plea to illegal re-entry charge).

Ninth Circuit

POST CON RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA
United States v. Ross, 511 F.3d 1233 (9th Cir. Jan. 14, 2008 ) (a conviction and 188-month sentence following a guilty plea to conspiracy to distribute crack is affirmed in part and remanded in part where: 1) a failure to advise defendant of the standard of proof during the plea colloquy did not constitute plain error; 2) there was no abuse of discretion in denying defendant's motion to withdraw his guilty plea; and 3) a remand was warranted pursuant to Ameline).

POST CON RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA MADE ON GROUND COURT FAILED TO ADVISE DEFENDANT OF REASONABLE DOUBT STANDARD PROPERLY DENIED
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) (rejecting argument that the district court abused its discretion when it denied the motion to withdraw the guilty plea, since defendant claims his intention to plead guilty to the offense while retaining the right to litigate the drug quantity constitutes a "fair and just reason" for withdrawing his plea under Federal Rule of Criminal Procedure 11(d)(2)(B), since the court had informed him "by pleading guilty, you are agreeing to the base amount" and the defendant agreed with the factual basis including drug quantity stated by the government).

POST CON RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA - DEFENDANT'S STATEMENTS DURING PLEA COLLOQUY ENTITLED TO STRONG PRESUMPTION OF VERACITY
United States v. Ross, 511 F.3d 1233, ___ (9th Cir. Jan. 14, 2008) ("Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea. United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir.2001) (giving "substantial weight" to a defendant's in-court statements in determining whether a guilty plea was voluntary); United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir.1993) ("[S]tatements made by a criminal defendant contemporaneously with his plea should be accorded great weight because [s]olemn declarations made in open court carry a strong presumption of verity.") (internal quotation omitted).").

POST CON RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA
The Ninth Circuits most recent case on withdrawing a plea, United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008), stated:

Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty prior to the imposition of sentence if he "can show a fair and just reason for requesting the withdrawal." While the defendant is not permitted to withdraw his guilty plea "simply on a lark," United States v. Hyde, 520 U.S. 670, 676-77, 117 S. Ct. 1630, 137 L. Ed. 2d 935 (1997), the "fair and just" standard is generous and must be applied liberally. "Prior to sentencing, the proper inquiry is whether the defendant has shown a fair and just reason for withdrawing his plea even if the plea is otherwise valid." Davis, 428 F.3d at 806. See also, United States v. Ortega-Ascanio, 376 F.3d 879, 884 (9th Cir. 2004) ("The validity of Ortega-Ascanio's guilty plea was not the proper inquiry; instead, because Ortega-Ascanio had not yet been sentenced, . . . the proper inquiry was whether he had shown a fair and just reason for withdrawing his plea even if it was otherwise valid.) Among "fair and just" reasons, the McTiernan court observed is, "Erroneous or inadequate legal advice . . ., even without a showing of prejudice, when the motion to withdraw is made presentence." Id. The defendants "burden is to show that proper advice could have at least plausibly motivated a reasonable person in [McTiernan's] position not to have pled guilty . . ." Id, at 1168.

The critical nature of advice by defense counsel on immigration consequences is reflected in the Supreme Courts reference to the ABA Criminal Justice Standards on the Defense Function:

And the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982).

INS v. St. Cyr, 533 U.S. 289, n.48 ( 2001), and its further observation that "competent defense counsel" would be sure that his client was aware. Id., n. 50. See United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005).

Inaccurate advice about the probable immigration consequences is a "fair and just" reason to withdraw an otherwise legally valid plea. It is more than just a matter that could "plausibly motivate" a person in his position not to plead, as reflected in the efforts to address immigration consequences, beginning the day after his plea was entered.

POST CONVICTION RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA - STANDARD OF REVIEW -- ABUSE OF DISCRETION - ERROR OF LAW
United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 (9th Cir. July 15, 2004) ("This Court reviews a district court's denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001) (en banc). A district court abuses its discretion when it makes an error of law. See id.; see also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by definition abuses its discretion when it makes an error of law.")).