United States v. Luke Brugnara , 455 F. App'x 761 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10283
Plaintiff-Appellee, D.C. No. 3:08-cr-00236-MMC
v.
LUKE BRUGNARA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
UNITED STATES OF AMERICA, No. 10-10286
Plaintiff-Appellee, D.C. No. 3:08-cr-00222-WHA
v.
LUKE BRUGNARA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
MEMORANDUM *
Submitted October 13, 2011 **
San Francisco, California
Before: WALLACE, THOMAS, Circuit Judges, and GEORGE,*** District Judge.
In a prosecution the parties refer to as the Tax Case, Luke Brugnara pled
guilty to three counts of filing false tax returns in violation of 26 U.S.C. §7206(1).
He appeals the district court’s denial of his motion to withdraw his plea in the Tax
Case, and the order of restitution imposed at sentencing. We affirm.1
I.
We review the district court’s denial of Brugnara’s motion to withdraw his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lloyd D. George, Senior District Judge for Nevada, sitting
by designation.
1
In a separate prosecution (the Endangered Species Case), Brugnara pled
guilty to four counts of taking a protected species, in violation of 16 U.S.C. §§
1538 and 1540, and two counts of making false statements to investigating agents,
in violation of 18 U.S.C. § 1001. Brugnara withdrew his motion to withdraw his
plea in the Endangered Species Case. However, he now asserts that we must
vacate his Endangered Species Case plea if we vacate his Tax Case plea, because
he pled guilty in both prosecutions as part of a global resolution. As we do not
vacate his Tax Case plea, we neither address his argument nor vacate his
Endangered Species Case plea.
2
guilty plea for abuse of discretion. United States v. Briggs, 623 F.3d 724, 727 (9th
Cir. 2010). Brugnara did not meet his burden of showing “a fair and just reason
for requesting the withdrawal.” Fed. R. Crim. Pro. 11(d)(2)(B). After reviewing
the record de novo, we conclude that Brugnara’s plea was voluntary. See United
States v. Signori , 844 F.2d 635, 688 (9th Cir. 1988). The district court engaged in
a detailed plea colloquy with Brugnara. Brugnara testified as to his mental and
physical condition and lack of coercion. He denied that his incarceration precluded
his voluntary and informed decision. He testified that he was satisfied with his
counsel. He volunteered that the idea to plead guilty was his. The district court
properly credited this testimony over Brugnara’s subsequent assertions and
statements to the contrary. United States v. Nostratis, 321 F.3d 1206, 1210 (9th
Cir. 2003).
Brugnara’s failure to handwrite his conduct on a plea application does not
present a fair and just reason for withdrawal. The district court properly relied on
the government’s proffer and Brugnara’s testimony during the plea colloquy to
determine that there was a factual basis for his plea. Fed. R. Crim. Pro. 11(b)(3).
He proffered no newly-discovered evidence in support of his claim of innocence.
An unsupported claim of innocence is not a fair and just reason for withdrawal.
See United States v. Turner, 898 F.2d 705, 713 (9th Cir.1990).
3
The government did not breach any promise made to Brugnara in connection
with his decision to plead guilty.
II.
We review de novo the legality of the district court’s restitution order.
United States v. Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010). If the order is within
statutory bounds, we review the factual findings supporting the award for clear
error, and the amount of restitution for abuse of discretion. Id.
The district court had authority to order restitution as a condition of
supervised release for Brugnara’s tax convictions. United States v. Batson, 608
F.3d 630, 636 (9th Cir. 2010). The district court acted within its discretion by
ordering restitution in the amount of $1,904,625, as that amount was supported by
an IRS agent’s declaration and accompanying schedules. In discussing restitution
and the amount of tax owed, Brugnara’s counsel agreed “the numbers
mathematically are correct.” The district court also did not abuse its discretion by
not holding an evidentiary hearing. See United States v. Rice, 38 F.3d 1536, 1546
(9th Cir. 1994).
AFFIRMED.
4