(CN) - The attorney for a Chinese national sentenced to almost 20 years for sex trafficking in the Northern Mariana Islands told a Ninth Circuit panel Tuesday that the conviction should be overturned because of bad advice from a former lawyer.
Wei Lin, 32, agreed to plead guilty to luring three women to Saipan in 2010 with the understanding that the base level offense for his crime carried a sentence of 15-21 months, not the 235 months he received. He lobbied the three-judge panel to allow him to withdraw his plea.
But Circuit Judge Paul Watford quickly outlined the legal framework for the case.
"Let me just try to focus you a little bit," Watford said Lin's attorney Bruce Berline. "We have cases - the Garcia case from 1990 is the one I'm thinking about in particular - that say 'if what you're complaining about is that your lawyer promised you a particular sentence and the judge ended up giving you a higher sentence, that is not a ground, even in the presentencing withdrawal context, for the judge to let you withdraw your plea.' So why don't you just zoom in on that and explain why do you think your case is different from that kind of case."
Berline emphasized the disparity between the former lawyer's promise of 15-21 months and the nearly 20 years Lin actually received.
Circuit Judge Jerome Farris interjected, saying that he saw no difference between the Lin case and Garcia.
"He assumed when he pleaded guilty there would be a penalty. And he assumed the penalty his lawyer told him would be the penalty," Farris said. "What do you want us to do?"
Berline referred to McTiernan, which held that the desire to avoid a sentence is not disqualifying if there is otherwise a fair and just reason to withdraw the plea.
Citing Garcia, Watford said there is not a big enough disparity to provide a fair and just reason to withdraw. But Berline argued that the standard in McTiernan is very liberal as to what is "fair and just."
Circuit Judge John Wallace appeared to box Berline in at this point.
"So that puts you right into the teeth of Mayweather. Unless you can get around Mayweather, you simply don't have a case. Now, in this case the trial judge said 'you may get [level] 34, you may get life.' And we said in Mayweather that even if counsel's misled you, when you're in front of the judge and the judge says 'this is what's liable to happen,' then those prior things don't matter at all. So, how do you distinguish Mayweather?"
Berline answered that Lin needed an interpreter and that his attorney during the sentencing was not familiar with facts of case.
Wallace seemed unmoved, saying that at the sentencing hearing Lin stated under oath that he understood the sentencing range he was subject to under the federal sentencing guidelines.
Watford, in turn, grilled Assistant U.S. Attorney Garth Backe about whether or not the defense lawyer grossly mischaracterized the real facts to Lin to warrant a fair and just reason to set aside the 235-month sentence handed down by U.S. District Chief Judge Ramona V. Manglona.
"What is the good reason he shouldn't withdraw. What's the harm in letting Lin go to trial," Watford asked.
"We're dealing with sex trafficking victims," Backe said. "And we knew he was going to do this even after a 90-minute sentencing colloquy."
"So, he was trying to game the system," Watford concluded.
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