United States of America v. David Williams

1 16-50384
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID WILLIAMS,
Defendant-Appellant.
No. 16-50384
D.C. No.
2:12-cr-01197-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted July 9, 2018
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and NYE, ** District Judge.
David Williams appeals the district court’s denial of his motion to withdraw
his guilty plea. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court properly recited in its decision that Williams carried the
burden of establishing a “fair and just reason” for withdrawing his guilty plea.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
FILED
JUL 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 6 --

2 16-50384
United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005). The district court then
went on to properly apply this legal standard.
a. First, in considering whether Williams had presented a fair and just reason
for withdrawal, the district court properly considered the strength of the
government’s case. Williams had argued that he should be permitted to withdraw
his guilty plea because the factual basis for his plea agreement was either
indisputably false or legally insufficient to support the wire fraud counts to which
he pled guilty. A district court “need not rely on the plea colloquy alone and ‘may
conclude that a factual basis exists [for a plea] from anything that appears on the
record.’” United States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009)
(citation omitted). Therefore, in re-examining whether a factual basis existed for
Williams’ guilty plea in the first place, it was proper for the district court to
consider all the evidence in the record.
b. The district court did not commit plain error when it did not find
Williams’ allegedly inadequate plea colloquy was a fair and just reason for
withdrawal of his guilty plea. Williams argues that while he admitted to several of
the elements necessary to establish the wire fraud convictions at his plea colloquy,
he never admitted to the necessary timeframe. Specifically, he never stated at the
plea colloquy that he formulated his scheme to defraud before causing the wire
fraud transfers to occur, which is a necessary element of the wire fraud charges.

-- 2 of 6 --

3 16-50384
See 18 U.S.C. § 1343; Model Crim. Jury Instr. 9th Cir. 8.124 (2010); United States
v. Brugnara, 856 F.3d 1198, 1207 (9th Cir. 2017); United States v. Sullivan, 522
F.3d 967, 975 (9th Cir. 2008).
Williams did not notify the district court of this alleged error at the plea
colloquy or in the motion to withdraw guilty plea. Accordingly, we review for
plain error. United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016).
As to whether there was a factual basis for Williams’ guilty plea, the
evidence in the record, including the evidence presented at the four days of trial,
readily established that Williams knowingly devised a plan to defraud investors in
June 2007, before he caused the investors to transfer money to his company, the
Sherwood Secured Income Fund LLC (“SSIF”), in January 2008. Thus, the district
court did not err in finding there was a legally sufficient factual basis for the plea
agreement at the guilty plea stage.
At the subsequent motion to withdraw stage, the district court also did not
err. Williams has not demonstrated that the district court’s failure to elicit
statements from him establishing the exact timeline of events during the plea
colloquy is a fair and just reason for withdrawal. In light of the other evidence
establishing his guilt, Williams has not shown that “a reasonable person in [his]
position [would] not . . . have pled guilty” if alerted to the gaps in the plea

-- 3 of 6 --

4 16-50384
colloquy. United States v. Yamashiro, 788 F.3d 1231, 1237 (9th Cir. 2015)
(internal quotation marks omitted).
c. The district court did not abuse its discretion in concluding that a
misstatement in the plea agreement was not a fair and just reason to permit
Williams to withdraw his guilty plea. The plea agreement misstated that the
“private placement memorandum” (“PPM”), which Williams gave to investors,
specified that the SSIF monies were to be “secured by a lien.” In fact, the PPM
stated that the promissory notes would be secured by the assets of the SSIF. As
stated previously, even disregarding this one error, there is clear evidence in the
record supporting a finding of guilt on the wire fraud charges. In addition, the
misstatement in the plea agreement regards a superfluous detail that does not affect
a finding of guilt on the wire fraud charges. Considering these circumstances,
Williams has not established that a reasonable person would not have pled guilty if
he or she knew about the misstatement in the guilty plea. Id.
2. The district court did not commit plain error in declining to grant the
motion to withdraw guilty plea on the grounds that Williams’ attorneys did not
understand a defense he wanted them to assert and the plea deal offered him little
benefit.
Williams argues for the first time on appeal that his attorneys did not
understand his so-called “PPM defense.” Williams’ PPM defense contends that

-- 4 of 6 --

5 16-50384
Williams made no misrepresentations to investors in the PPM (and thus did not
commit wire fraud) because the PPM required only that SSIF funds be used to
invest in a real estate company, and the company in which Williams invested the
SSIF funds—Williams Financial Group—was a real estate company because it
held the title to a single piece of real property.
There is no evidence that Williams’ attorneys did not understand the PPM
defense. Rather, the record shows the attorneys fully investigated the defense and
found it unsupported and unpersuasive. Moreover, even if Williams could establish
that Williams Financial Group was a real estate company, that fact would not
absolve him of guilt—there was a plethora of evidence that Williams used SSIF
funds, invested in Williams Financial Group, for his personal and family expenses,
not to invest in real estate.
Finally, Williams knew at the time he entered the plea agreement the extent
of any benefit he would obtain from pleading guilty rather than proceeding to trial.
Generally, only reasons “that did not exist when the defendant entered his plea”
constitute fair and just reasons for withdrawal. United States v. Ortega-Ascanio,
376 F.3d 879, 883 (9th Cir. 2004). In addition, Williams cannot withdraw his plea
simply because he thought he would get more benefit out of the plea agreement, in
the form of a lighter sentence or a smaller restitution order, for example. United
States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003). Thus, the district court did

-- 5 of 6 --

6 16-50384
not commit an error, let alone a plain error, in failing to grant the motion to
withdraw guilty plea on this ground.
AFFIRMED.

-- 6 of 6 --