United States v. Dean A. Lambey

*1391OPINION

NIEMEYER, Circuit Judge:

Dean A. Lambey pled guilty to a two-count information charging him in Count I with conspiracy to kidnap a minor in violation of 18 U.S.C. § 1201(c) and in Count II with using an interstate computer facility to publish notices and advertisements to produce child pornography and to engage in sexually explicit conduct with minors in violation of 18 U.S.C. § 2251(c). Two weeks after the district court accepted the guilty plea following a Rule 11 hearing, but before sentencing, Lambey moved to withdraw the plea, contending that his attorney had erred in estimating his sentence and that, if had he been advised of the correct sentencing range, he would have demanded a trial. The district court denied the motion and sentenced Lambey to 860 months in prison on the conspiracy count and 120 months on the pornography count, the terms to run concurrently.

Lambey contends on appeal that the district court erred in refusing to grant his motion to withdraw his guilty plea and in failing to advise him pursuant to Fed. R.Crim.P. 11(e)(2) that he could not withdraw his plea once it was given to the court. The issues were argued before a panel of this Court which affirmed the district court. 949 F.2d 133 (4th Cir.1991). The Court en banc thereafter granted Lam-bey’s petition for rehearing, ordering that the earlier panel opinion be vacated and the case reheard by the Court en banc.

On rehearing Lambey again presents the points argued to the panel. and, on the invitation of the Court to argue whether the district court properly applied the Sentencing Guidelines, contends alternatively that the district court erred in applying the Sentencing Guidelines. In his supplemental brief Lambey contends that, properly applied, the Sentencing Guidelines direct that the sentencing range on Count I be 63-78 months and on Count II, 41-51 months.

Finding no reversible error, we affirm.

I

In February 1989, as part of an investigation to uncover child pornographers, Officer James Rodrigues, Jr., of the San Jose, California Police Department, placed an announcement with a computerized bulletin board service. In the announcement, Rod-rigues, using an alias, identified himself as a bisexual pedophile and requested others with similar interests to contact him. Lam-bey responded to the announcement with his own announcement which stated, “Your message caught my interest. Think we may have something in common but need to explore more. Want to talk?? P.S. I like REAL youngsters!!” This began a protracted series of communications between Rodrigues and Lambey which revealed a plot by Lambey and another individual, Daniel T. DePew, to buy or kidnap a male child, film him engaging in sexual activities, murder him on film, and sell copies of the “snuff film” to interested buyers. In the course of their communications through the computer network and later by telephone and in person, Rodrigues and another undercover officer witnessed Lambey and DePew discussing and plotting the kidnapping, sexual assault, and murder of a child. Lambey undertook specific responsibility for obtaining a rental van for the kidnapping and video equipment and tapes for the filming, and he suggested that his home in Richmond, Virginia, be used as the location for the crime. In August 1989, Lambey telephoned Officer Rodrigues to tell him that he, Lambey, had spotted a child who appeared to be about 13 years old riding his bicycle in an industrial area of Richmond. When Lam-bey indicated his plan that this child be the victim, Lambey was arrested.

Retained counsel negotiated and Lambey agreed to a plea agreement. According to Lambey, while discussing the plea agreement with him, his counsel said that he “felt” the case would fall into the sentencing range defined by levels 27 to 29 of the Sentencing Guidelines, providing for a sentence of “somewhere between 70-108 months,” but that he “could not predict” the specific sentence Lambey would receive. His counsel gave Lambey a copy of *1392the sentencing table from the Sentencing Guidelines Manual on which counsel had written the sentencing range for a § 1201(c) (conspiracy to kidnap) as “24-32 pts,” providing for a range of 51-151 months, and he had circled levels 28-29 on the table providing for a range of 78-108 months. Testifying later at the hearing on Lambey’s motion to withdraw his plea, Lambey’s counsel stated that his sentence estimates were based on his best judgment after having consulted with other attorneys.

Lambey thereafter signed the plea agreement, which provided that any sentence was “within the sole discretion of the sentencing judge” and the district court has “jurisdiction and authority to impose any sentence within the statutory maximum set for [Lambey’s] offense, including a sentence determined under the Sentencing Guidelines.” The plea agreement itself continued with a provision that no sentence had been determined and that any prediction was not binding on the court:

The defendant is aware that his sentence has not yet been determined by the Court. He is also aware that any estimate of the probable sentencing range that he may have received from counsel, the government, or the probation office, is a prediction, not a promise, and is not binding on the government, the probation office, or the Court. Realizing the uncertainty in estimating what sentence he will ultimately receive, the defendant knowingly waives his right to appeal the sentence in exchange for the concessions made by the government in this agreement.

(Emphasis added).

At the hearing conducted pursuant to Fed.R.Crim.P. 11, Lambey 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 Lambey of the nature of the two counts with which he was charged, the district court advised him that he could receive a life sentence on Count I and ten years on Count II and that the sentences could be imposed consecutively. The court also stated, “[Ujnder Guideline sentencing, no one can accurately predict what your sentence will be until such time as a pre-sentence report has been made available to the Court.” Finally, the court received the statement of Lambey’s counsel that counsel, too, had advised Lambey of the unpredictability of his sentence “as recently as last evening.”

After the Rule 11 hearing but prior to sentencing, Lambey’s probation officer, after interviewing Lambey, tentatively “figured up the points” applicable for computing a sentencing guideline range. The probation officer advised Lambey that there was “a discrepancy between what [the officer] had tentatively figured and what [Lambey] was thinking.”

Lambey promptly wrote a letter to the district court, stating, “The original pleas were ill advised, and made at a time of great stress,” and a letter to his counsel requesting that a motion to withdraw his plea be filed because “my pleas of guilty were made under great emotional pressure, and ... I did not fully have time to previously give the actions the deliberation and consideration they were due.” About a week later he wrote the court again, “I have been counseled and advised by Mr. Linka [his counsel] regarding this matter and have no desire to withdraw my plea at this time.”

Counsel for Lambey nevertheless filed a motion to withdraw the plea on the grounds that Lambey was “subject to great deal of stress and not fully aware of the implications of such pleas.” New counsel for Lambey thereafter amended the motion to withdraw the plea because Lambey had been advised by previous counsel that the offense level “would be either 28 or 29, thus a period of confinement would be between 78 months and 108 months.”

Following a hearing at which testimony was received, the district court denied Lam-bey’s motion to withdraw his plea. Lam-bey was subsequently sentenced to 360 months imprisonment on Count I and a concurrent 120 months on Count II.

*1393II

Lambey contends principally that his motion to withdraw his guilty plea should have been granted because his first attorney’s erroneous estimate on the applicable sentencing guideline range constitutes 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 on the applicable sentencing range, he would have gone to trial.

The government argues that Lambey’s “unrealized expectations at sentencing” do not justify allowing him to withdraw his guilty plea. It relies on our decision in United States v. DeFreitas, 865 F.2d 80 (4th Cir.1989) (holding that DeFreitas could withdraw his plea based on conduct of counsel only if (1) counsel’s performance “fell below an objective standard of reasonableness” and (2) he would not have pleaded guilty but for counsel’s error). The government argues that counsel’s advice was just a prediction given with all the admonitions of its potential variation from the actual sentence, and that giving erroneous estimates in this circumstance does not constitute ineffective assistance of counsel.

Rule 32(d) of the Federal Rules of Criminal Procedure, under which Lambey filed his motion to withdraw his plea, 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 the defendant to withdraw a plea is discretionary, and our review is limited to the question of whether the district court abused its discretion.

Rule 32(d) was amended in 1983 to impose a more definite standard on presen-tence motions to withdraw pleas. Before the amendment, withdrawals of pleas were freely allowed unless the “ ‘prosecution [had] been substantially prejudiced by reliance upon the defendant’s plea.’ ” United States v. Strauss, 563 F.2d 127, 130 (4th Cir.1977) (quoting 2 C. Wright, Federal Practice and Procedure § 528, at 474-75 (1969)); see also, United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977). The permissive approach of these cases was rejected by the changes to Rule 32(d) and the institution of more formal proceedings for accepting pleas under Rule 11. See United States v. Haley, 784 F.2d 1218 (4th Cir.1986). The Advisory Notes on the 1983 amendment to Rule 32 provide, in connection with the changes:

Although that position [as stated in Strauss and Savage] may once have been sound, this is no longer the case in light of the recent revisions of Rule 11. *1394Rule 11 now provides for the placing of plea agreements on the record, for full inquiry into the voluntariness of the plea, for detailed advice to the defendant concerning his rights and the consequences of his plea and a determination that the defendant understands these matters, and for the determination of the accuracy of the plea. Given the great care with which pleas are taken under this revised Rule 11, there is no reason to view pleas so taken as merely “tentative,” subject to withdrawal before sentence whenever the government cannot establish prejudice.

Advisory Committee Notes on the 1983 Amendment to Fed.R.Crim.P. 32, 18 U.S.C.App., p. 800 (1988).

Accordingly, a “fair and just” reason for withdrawing a plea is one that essentially challenges either the fairness of the Rule 11 proceeding wherein the defendant tendered, and the court accepted, the plea or the fulfillment of a promise or condition emanating from the proceeding. What happens or is told the defendant before the hearing and induces the defendant not to change his plea at the hearing may be relevant to the analysis under Rule 32(d). If, however, at the Rule 11 hearing, the court specifically warns the defendant of possible results different from those he anticipated because of the prior event or advice, then the defendant bears a heavy burden when attempting to demonstrate that the prior event or advice should form the basis of a fair and just reason for a later withdrawal of his plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding.

In DeFreitas the defendant sought to withdraw a guilty plea on the basis that he was improperly advised on law and fact by his counsel and therefore his plea was not freely and voluntarily tendered. Counsel allegedly failed to advise DeFreitas on elements of proof in which the United States had the burden and on the vulnerability of a government witness. He also failed to advise DeFreitas that he might be subject to deportation if he pleaded guilty. Because the advice and conduct of counsel, even when coupled with other alleged acts of misfeasance, did not fall below an objective standard of reasonableness, we concluded that a “fair and just” reason for withdrawal of the plea had not been established:

DeFreitas may withdraw his plea only if he makes two showings: (1) that his counsel’s performance “fell below an objective standard of reasonableness” and (2) that he was prejudiced in the sense that “there [was] a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.”

865 F.2d at 82 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)).

In the present case Lambey 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. He has suggested no confusion about the nature of the charges, the defenses to them, or their applicability to his factual circumstances to satisfy a finding of guilt. Moreover, he suggests no error in the court’s advice to him on what he could receive by way of a sentence. He contends simply that he believed he would receive a shorter sentence than that outlined by the court because of discussions with his attorney which took place prior to the Rule 11 proceeding.

The undisputed facts reveal that the attorney discussions, relied on by Lambey, involved estimates which Lambey knew were only predictions. Thus the very advice received by Lambey informed him that his plea was not being given for a specific sentence or sentence range, but rather that the sentence would be determined by the court. Lambey again acknowledged advice not to rely on his attorney’s estimates in the written plea agreement and was yet again given such advice by the district court at the Rule 11 hearing. Little more *1395could have been said to warn Lambey about the potential vagaries of sentencing.

While we accept Lambey’s claim that, notwithstanding the admonitions not to expect a particular sentence range, he did not expect to be susceptible to such a large variation from the estimates he was given, we must also accept his statements at the Rule 11 hearing that he was aware that no sentence had yet been determined and that he could receive a sentence up to life imprisonment. He testified he was aware that any predictions as to a sentence were not binding on the court, and he acknowledged that no promises or understandings, other than as contained in the plea agreement, induced his guilty plea. Statements of fact by a defendant in Rule 11 proceedings may not ordinarily be repudiated, and, similarly, findings by a sentencing court in accepting a plea “constitute a formidable barrier” to attacking the plea. Cf. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-1629, 52 L.Ed.2d 136 (1977).

We do not rule out the possibility that a defendant’s misapprehension of a likely sentence, based on a clear error in the advice given him, can be a fair and just reason 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 at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney 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.

It is argued that while a minor error by an attorney in estimating a sentence might fail as a just reason for withdrawal of a plea, when the variation between the actual sentencing range and the estimate is as significant as presented here, we leave the realm of reasonable estimating, raising a question about the competency of counsel. As opposed to a “pure guess,” estimation, it is argued, is a form of advice for which there is an objective standard of reasonableness below which an attorney’s conduct should not fall. See United States v. De-Freitas, 865 F.2d at 82 (holding that a plea may be withdrawn when the defendant shows that “counsel’s performance ‘fell below an objective standard of reasonableness’ ” and that but for the error, defendant would probably have insisted on a trial) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369 (1985)); cf. Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir.1981) (to attack “the voluntary and intelligent character” of a guilty plea, the defendant must show that the advice received was not “within the range of competence demanded of attorneys in criminal cases”).

Other than the significant discrepancy between the sentencing range estimated by Lambey’s attorney and the range actually applied, however, the record reveals no evidence of incompetence. On the contrary, counsel for Lambey had attended training courses on the Sentencing Guidelines and had consulted with other attorneys before giving his estimate. Also telling, the attorney representing Lambey before this Court, who is different from the counsel who made the estimate for Lambey, urges by way of alternative argument on appeal that the estimate was correct and the sentencing court applied the wrong guidelines range. Finally, the same method of calculation was also urged as a ground for appeal to reverse the sentence of Lambey’s co-conspirator, DePew. See DePew, 932 F.2d at 328-30. Calculating the sentence for conspiracy to kidnap when one of the objects of the conspiracy was murder requires passing through several sections of the Sentencing Guidelines, from § 2X1.1 to § 2A4.1 to § 2A1.1 and finally to § 2X1.1(b)(2). See supra, note 1. It is not unreasonable to argue that the section applicable to conspiracy to murder, § 2A2.1 (§ 2A1.5 in the current version of the Sentencing Guidelines), should simply be followed instead. More importantly, it was not unreasonable for Lambey’s counsel to have made an estimate on that basis. It is precisely because of the complexity in the application of the Sentencing Guidelines that Lambey was warned not to rely on estimates. Indeed, his plea agreement included acceptance by him of an open sen*1396tence, to be determined by the court later. Had he required agreement on a specific sentence or sentence range, a plea agreement pursued under Fed.R.Crim.P. 11(e)(1)(C) would have allowed the possibility-

In the circumstances presented here, where reasonable estimates of Lambey’s attorney were announced as only estimates on which Lambey could not rely and the court clearly and correctly pointed out to Lambey at the Rule 11 proceeding that he could receive a life sentence, we conclude that the court did not abuse its discretion in rejecting his misapprehension as a fair and just reason to withdraw his guilty plea under Fed.R.Crim.P. 32(d). See United States v. McHan, 920 F.2d 244, 246-47 (4th Cir.1990) (no abuse of discretion to deny motion to withdraw guilty plea based on attorney’s failure to inform defendant that the government might use the plea against him in a future case).

Ill

Lambey also argues that his sentence should be vacated because at the Rule 11 hearing the district 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. His argument is based on the incorrect premise that Rule 11(e)(2) applies in these circumstances.

Rule 11(e)(2) reads in relevant part: If the [plea] agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.

Rule 11(e)(1)(B), to which Rule 11(e)(2) refers, describes a plea agreement that includes an obligation of the government to make a sentencing recommendation or not to oppose a sentencing request made by the defendant. Rule 11(e)(1) reads:

(1) The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo con-tendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:
* * * * # #
(B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court....

As the Advisory Notes to the 1979 amendment to Rule 11(e)(2) illustrate, a Rule 11(e)(1)(B) type agreement requires the special warning by the court whereas other types of agreements do not: “Because a type (B) agreement is distinguishable from the others in that it involves only a recommendation or request not binding upon the court, it is important that the defendant be aware that this is the nature of the agreement into which he has entered.” Advisory Committee Notes on the 1979 Amendment to Fed.R.Crim.P. 11, 18 U.S.C.App. p. 745 (1988).

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 Lambey, Rule 11(e)(2) was not applicable and there was no requirement that the district court inform Lambey that once he pled guilty he could not withdraw the plea.

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

AFFIRMED.

At oral argument appellate counsel, for Lambey, in response to the Court's invitation to address the Sentencing Guideline calculations, contended that the estimates of Lambey’s first counsel were indeed correct and that the district court erred in applying the Sentencing Guidelines.

The district court began its analysis with U.S.S.G. § 2X1.1 because Lambey pled guilty to conspiracy to kidnap under 18 U.S.C. § 1201(c), a conspiracy for which no specific guideline applied. Section 2X1.1 refers to.the guideline applicable to the object of the conspiracy, § 2A4.1 (kidnapping), and any adjustment therefrom for any intended conduct that can be established with reasonable certainty. The kidnapping guideline, in turn, substitutes the guideline for the offense the kidnapping was to facilitate, in this case § 2A1.1 (first degree murder). The resulting offense level, 43, was then reduced three levels under § 2X1.1(b)(2) because the murder was not in fact accomplished. Urging a different route, Lambey’s appellate counsel argued that the guideline for conspiracy to murder, § 2A2.1 (§ 2A1.5 in the current version of the Sentencing Guidelines), which he argued provides for a maximum offense level of 29, should be used, rather than pursuing the offense level through the kidnapping charge.

Recognizing that this argument would render moot Lambey’s motion to withdraw his guilty plea because the motion is based on former counsel’s erroneous estimate, appellate counsel for Lambey advanced this argument as an alternative position if Lambey is not allowed to withdraw his guilty plea.

Even though Lambey did not appeal the Sentencing Guideline calculation, we might be inclined to consider the Sentencing Guidelines issue if the district court committed plain error. See United States v. Maxton, 940 F.2d 103, 105 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 398, 116 L.Ed.2d 347 (1991). However, because this same argument was rejected in connection with the sentence of Lambey’s co-conspirator, see United States v. DePew, 932 F.2d. 324, 328-29 (4th Cir.1991), and Lambey’s plea agreement contains clauses expressly waiving his right to appeal the sentence, we will not review the issue. See United States v. Wiggins, 905 F.2d 51, 54 (4th Cir.1990).