United States v. Alfredo Ortega-Ascanio

BREYER, District Judge:

This appeal asks us to decide whether a defendant establishes a “fair and just reason” for withdrawing a plea when he seeks to withdraw his plea before sentencing so that he can move to dismiss his indictment based on an intervening United States Supreme Court decision. In the circumstances of this case, we answer yes.

Appellant Alfredo Ortega-Ascanio pled guilty to illegal reentry. After his guilty plea, but before sentencing, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). St. Cyr held that the Antiterrorism and Effective…