Criminal Practice – Sentencing Guidelines – Sexual Offenses – Murder Conspiracy

Even though a defendant may have received erroneous information about likely sentencing from counsel before a plea hearing, when the defendant still pleads guilty after the court provides correct information and the defendant has admitted to understanding the court’s advice, this court will not sustain an appeal of the district court’s denial of the defendant’s motion to withdraw his plea.

Defendant was arrested and charged with conspiracy to kidnap a minor and using an interstate computer facility to produce child pornography and engage in sexually explicit conduct with minors. Allegedly, defendant would participate in the kidnapping, sexual assault and murder of a child which would be filmed for use in a pornographic film.

Two weeks after the district court accepted his guilty plea, but before sentencing, the defendant moved to withdraw his plea, contending that his attorney had erred in estimating his sentence and that, if he had been advised of the correct sentencing range, he would have demanded a trial. The district court denied the motion and sentenced the defendant to 360 months in prison on the conspiracy count and 120 months on the pornography count, the terms to run concurrently.

Retained counsel negotiated and defendant agreed to a plea agreement. According to the defendant, his counsel said that he felt the case would fall into the sentencing range of the guidelines providing for a sentence of somewhere between 70 and 108 months, but that he could not predict the specific sentence the defendant would receive. Testifying later at the hearing on the motion to withdraw the plea, defendant’s counsel stated that his estimates were based on his best judgment after having consulted with other attorneys.

Defendant signed the plea agreement, which provided that any sentence was within the sole discretion of the sentencing judge and court had authority to impose any sentence within the statutory maximum for the offense. At the hearing conducted pursuant to Fed. R. Crim. P. 11, the defendant testified that he had read and fully understood all of the terms of the plea agreement and that it represented the entire understanding between him and the government. After advising the defendant of the nature of the two counts, the court advised him that he could receive a life sentence on count I and ten year on count II and that the terms could be imposed consecutively.

After the hearing but before sentencing, the defendant’s probation officer advised the defendant that there was a discrepancy between what the officer and the defendant considered a likely sentence under the guidelines. Defendant then moved to withdraw his plea.

Defendant contends that his plea should have been withdrawn because his original attorney’s erroneous estimate constituted a fair and just reason, as used in Fed. R. Crim. P. 32(d) for withdrawal of the plea. He contends that had he been properly advised, he would have gone to trial. Rule 32(d) provides that the district court may permit the withdrawal of a plea before sentencing if the defendant demonstrates a fair and just reason. The decision to permit withdrawal is discretionary, and our review is limited to the question of whether the district court abused its discretion.

In the present case, the defendant raises no objection to what occurred in the Rule 11 hearing or to the accuracy and adequacy of the information presented to him there. The reason he advances for withdrawing his guilty plea does not bear on whether he was in fact guilty.

We do not rule out the possibility that a defendant’s misapprehension of a likely sentence, based on a clear error in advice given him, can be a fair and just reasons for withdrawal of a guilty plea, if it is not corrected by the court at the Rule 11 hearing. Yet, if the information given by the court corrects or clarifies the earlier erroneous information and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant.

Defendant also argues that his sentence should be vacated because at the Rule 11 hearing, the court failed, pursuant to Fed. R. Crim. P. 11(e)(2), to inform him that once he pled guilty he could not withdraw the plea.

Since there was no agreement by the government in this case to recommend a specific sentence or to refrain from opposing a sentence recommendation by the defendant, Rule 11(e)(2) was not applicable and there was no requirement that the district court inform the defendant that once he pled guilty he could not withdraw the plea.

For the reasons stated above, we affirm the judgment of the district court.

Statutes cited: 18 U.S.C. § § 1201(c), 2251(c).

Rules cited: Fed. R. Crim. P. 11, 11(e)(1), 11(e)(1)(B) & (C), 11(e)(2), 32, 32(d). U.S.S.G. § § 2A1.1, 2A1.5, 2A2.1, 2A4.1, 2X1.1, 2X1.1(b)(2).

Dissents

Murnaghan, J: While I concur in the majority’s opinion insofar as it holds that the district court did not err in denying the defendant’s motion to withdraw his plea, I write separately to dissent from the majority’s resolution of the sentencing guidelines issue raised sua sponte by the court.

Because I believe the rule of lenity prevents us from interpreting the guidelines so as to apply the guideline for fully executed first degree murder and circumvent the specific guideline for a conspiracy to murder (which was planned but not effectuated), I would remand for resentencing.

Statutes cited: 18 U.S.C. § § 1201(c), 2251(c), 3553.

Rules cited: Fed. R. Crim. P. 52(b). U.S.S.G. § § 1B1.5, 2A1.1, 2A1.5, 2A2.1, 2A4.1, 2A4.1(b)(5), 2A4.1(b)(5)(B), 2A4.1(b)(7), 2X1.1, 2X1.1(a) & (b), 2X1.1(b)(1) & (2), 2X1.1(c), 3A1.1, 3D1.2(a) & (b).

Widener, J: Because I am of the opinion that the facts surrounding the defendant’s entry and attempted withdrawal of his guilty plea constitute a fair and just reason for such withdrawal, and that under these circumstances the district court abused its discretion in denying the motion under Rule 32(d), I respectfully dissent.

I am authorized to state that Judge Sprouse joins in this opinion.

Rules cited: Fed. R. Crim. P. 11, 32, 32(d).

Hall, J.: Defendant conspired with another to kidnap a boy and to then sexually abuse and murder him in the process of making a snuff movie. For this he was sentenced to thirty years in prison. Even to talk of such awful crimes is abhorrent, but the extent of what occurred was just that, talk. If a defendant, instead of talking about kidnapping his victim, conspires to murder him, attempts to murder him and inflicts permanent or life-threatening injuries, his guideline range would nevertheless be strikingly lower than the 360-life range applied to this conspiracy conviction.

In the event the Supreme Court should find the guidelines were properly applied, the defendant should, at the very least, have the option of withdrawing his plea. With this qualification, I concur with Judge Widener’s analysis of the plea withdrawal issue.

Rules cited: U.S.S.G. § § 1B1.2(a), 2A1.5, 2A2.1, 2A2.1(a), 2A2.1(b)(3)(C), 2A4.1, 2A4.1(b)(5), 2A4.1(b)(5)(A), 2X1.1, 2X1.1(b), 2X1.1(b)(2), 2X1.1(c), 3A1.1.

Phillips, J: I agree with the essential points made in Judge Widener’s dissenting opinion and with the result he would reach: a remand to allow withdrawal of the guilty plea and repleading. I write separately only because of disagreement with his view on the sentencing issue and its effect on the withdrawal issue.

In sum, I would find an abuse of discretion in the denial of defendant’s motion for leave to withdraw, and would remand for repleading without addressing the issue of the legality of the sentence imposed.

Chief Judge Ervin joins in this opinion.

Statute cited: 28 U.S.C. § 2255.

Rules cited: Fed. R. Crim. P. 34(d). U.S.S.G. § § 2A2.1, 2A3.1.

Affirmed.

U.S. v. Lambey. (Lawyers Weekly No. CA01311 – 33 pp.) (Niemeyer, J.) No. 90-5619, Sept. 1, 1992; USDC at Richmond, Va.