United States of America v. Douglas John Fitzgerald

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS JOHN FITZGERALD,
Defendant - Appellant.
No. 11-30200
D.C. No. 1:09-cr-00113-BLW
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Douglas John Fitzgerald appeals pro se from his guilty-plea conviction to
one count of attempting to evade and defeat tax, in violation of 26 U.S.C. § 7201.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Fitzgerald contends that the district court erred by denying his motion to
FILED
JUL 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-30200 2
withdraw his plea. He argues that he had two fair and just reasons for withdrawal.
First, he contends that he was unaware that his plea agreement did not preserve his
right to appeal the district court’s denial of his motion to dismiss the indictment on
Speedy Trial Act grounds. Second, he argues that he was unaware that he had a
viable defense based on an absence of willfulness. The record belies these
contentions. Accordingly, the district court did not abuse its discretion by denying
the motion to withdraw. See Fed. R. Crim. P. 11(d)(2)(B); United States v.
Mayweather, 634 F.3d 498, 504 (9th Cir. 2010).
To the extent that Fitzgerald contends that he received ineffective assistance
of counsel, we decline to consider that contention on direct review. See United
States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir 2011).
AFFIRMED.

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