dissenting:
Because I am of opinion that the facts surrounding Lambey’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 Federal Rule of Criminal Procedure 32(d), I respectfully dissent.
Lambey’s trial counsel, while advising him to accept the government’s offer of a plea agreement, badly misstated the range of years of confinement to prison to which Lambey would be subject under the Sentencing Guidelines.1 Lambey’s counsel erroneously informed him that a plea of guilty under the agreement would result in a sentence of between 78 and 108 months. In fact, Lambey’s Guideline range of sentences was from 360 months to life, and he ultimately was sentenced to serve 360 months in prison, a term over three times longer than his counsel's estimated maximum.
Lambey first became aware of his attorney’s error during a presentence interview with his probation officer, on December 4, 1989, five days after his guilty plea was entered, but before he was sentenced. Upon learning that he faced a substantially longer prison term than his attorney had *1403led him to believe, Lambey immediately dispatched letters to his attorney and to the district court asking that he be allowed to withdraw his guilty plea and be tried by a jury. In his letter to the court Lambey stated that his guilty pleas were “ill advised, and made at a time of great stress.” Lambey’s counsel followed up this letter by filing formal motions to withdraw the pleas. These motions fully explained the deficiencies of his counsel’s earlier advice and the circumstances under which the pleas of guilty were entered. Prior to denying Lambey’s motions and imposing sentence, the district court received testimony and heard argument regarding his counsel’s erroneous advice. Lambey himself testified unequivocally that he would not have waived his right to trial by jury had he received proper advice regarding the range of prison terms that he faced. While the testimony of Lambey, of course, might be discounted, the other facts which are undisputed can not, and the district court was thus fully aware before sentencing of the circumstances surrounding Lambey’s guilty pleas and of his desire to be tried by a jury.2
My objection to the majority decision lies in the application of the standard governing motions to withdraw pleas of guilty. Fed.R.Crim.P. 32(d) allows the district court to permit a defendant to withdraw a guilty plea before sentence is imposed “upon a showing by the defendant of any fair and just reason.” Following our decision in United States v. DeFrietas, 865 F.2d 80 (4th Cir.1989), the majority would require a federal defendant seeking to withdraw his guilty plea before sentencing under Fed.R.Crim.P. 32(d) on the grounds of erroneous pre-plea legal advice to show that his attorney rendered constitutionally ineffective assistance under the stringent standard of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I submit that our decision in DeFrietas is flawed in that it applies an incorrect and unduly stringent legal standard to a federal defendant’s attempt to withdraw a plea of guilty. I would overrule DeFrietas in favor of our more recent, and in my view correct, statement of the law in United States v. Moore, 931 F.2d 245 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991).
As the majority notes, in DeFrietas we stated that under Rule 32(d) a federal defendant may withdraw a plea of guilty on grounds of erroneous legal advice
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.”
DeFrietas, 865 F.2d at 82 (quoting Hill v. Lockhart, 474 U.S. at 57, 59, 106 S.Ct. at 369, 370).
The standard set out in DeFrietas is, of course, the familiar standard for determining when an attorney’s performance is so inadequate as to constitute a violation of the defendant’s Sixth Amendment right to counsel. In Hill v. Lockhart, upon which DeFrietas relied, the Court considered the appeal of a state prisoner from the federal courts’ denial of his petition for a writ of habeas corpus. The petitioner in Hill sought relief from his state conviction on the grounds that his guilty plea, i.e., his waiver of his constitutional right to trial by jury, was constitutionally infirm in that it was “involuntary as a result of ineffective assistance of counsel because his attorney supplied him with information about parole eligibility that was erroneous.” Hill, 474 *1404U.S. at 56, 106 S.Ct. at 369. The Court held that this constitutional claim was governed by the Sixth Amendment ineffective assistance standard of Strickland. See 474 U.S. at 57, 106 S.Ct. at 369.
DeFrietas, in contrast, involved the direct appeal of a federal criminal defendant who had sought to withdraw a guilty plea under Rule 32(d). Despite this difference, we held that when the proffered “fair and just” reason for withdrawal is erroneous advice of counsel, a defendant must establish that his counsel’s performance rose to the level of a Sixth Amendment violation. This, I submit, was error. When a federal defendant seeks to withdraw his plea, not on the grounds that the plea was a constitutionally infirm, involuntary waiver of the right to trial, but on the grounds that he has a “fair and just reason” to do so, the standard of Hill and Strickland is not implicated. Rather, the Federal Rules of Criminal Procedure can and do establish a more flexible and less rigorous standard for the withdrawal of guilty pleas before sentencing.
We recently set forth the correct analysis for identifying a “fair and just reason” under Rule 32(d) in United States v. Moore, supra. In Moore we stated that:
Courts typically consider a variety of factors in determining whether a defendant has met his burden under Rule 32(d). The factors include (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.
Moore, 931 F.2d at 248; see also C. Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982, 1992 Supp.). Applying this analysis, I would hold that the district court abused its discretion in refusing to permit Lambey to withdraw his plea.
I am of opinion that all but one of the factors identified in Moore strongly favor Lambey’s argument that he established a fair and just reason for withdrawal of his plea.3 As to the first factor I consider, one that in this case is closely related to the fourth factor in Moore, I am of opinion that Lambey’s grossly erroneous conception of the imprisonment range that he was facing effectively rendered his plea unknowing and involuntary. Cf. Hoffman v. Leeke, 903 F.2d 280, 289 (4th Cir.1990) (“A defendant cannot knowingly and intelligently waive what he does not know.”).
Second, the time lapse between the entry of his guilty plea and his motion to withdraw was negligible under the circumstances. Despite some later confusion and indecision on Lambey’s part, see note 2, supra, his initial motion to withdraw came only 22 days after his guilty plea. More importantly, Lambey made his motion immediately upon learning from his probation officer of his counsel’s mistake; clearly, then, the motion cannot be said to have been made for strategic or dilatory purposes.
Third, and most crucial in this case, the advice Lambey received from his counsel as to the consequences of waiving his right to trial was so erroneous and inadequate that he could not have made an informed decision. In my view this factor alone, on the facts of this case, is very nearly dispos-itive of the whole question. In this regard I cannot accept the majority’s suggestion that the admittedly complex nature of the Sentencing Guidelines should relieve Lam-bey’s counsel from his obligation to provide him with a sufficiently accurate estimate of the consequences associated with the waiver of the most central right in our criminal justice system, that of trial at all and especially trial by jury. If the Guidelines are indeed so complex that we cannot expect lawyers consistently to provide reasonably *1405accurate estimates, it is my opinion that defendants should not as a matter of course be made to bear the burden of that complexity.
Fourth, had the district court permitted Lambey to withdraw his plea, the government has made no suggestion that it would have been prejudiced in the least. Again, Lambey entered his plea on November 29, 1989, and his motion to withdraw the plea was first received by the district court on December 20, 1989. Absent any evidence of extraordinary intervening events, it appears that the government’s ability to prosecute Lambey would not have been impaired in any way by allowing withdrawal only a matter of weeks after the execution of the plea agreement.
Finally, allowing the withdrawal would not have resulted in any inordinate inconvenience to the court or a waste of judicial resources. Certainly the withdrawal of the plea results in a waste of the Rule 11 hearing at which the plea was accepted. However, given the importance of the rights involved, the resources expended in that relatively brief proceeding can hardly be said to weigh against an otherwise proper withdrawal. In sum, I am of opinion that the Moore standards were so clearly satisfied in this case that the refusal to allow withdrawal constituted an abuse of discretion.
In the ordinary case in which a defendant attempts to withdraw a plea of guilty on the grounds that he was mistaken as to the consequences of the plea or of the legal rights waived by the plea, the fact that the plea was accepted only after a properly-conducted Rule 11 hearing may well foreclose withdrawal of the plea. I submit, however, that this is far from an ordinary case and is one in which the effect of the Rule 11 colloquy should not be so broad. I would treat the content and effect of the Rule 11 inquiry as merely another, though particularly important, factor in the withdrawal analysis set out above.
The majority insists that the district court’s statements to Lambey at the Rule 11 hearing sufficiently warned him that his counsel’s estimates were not to be relied upon. Maj. op. at 1394-1395. While it is true that the district court in a general manner informed Lambey that “no one ... [could] accurately predict” his sentence, the court simply did not inquire with any specificity into whether Lambey’s counsel had made any estimates. It is also incorrect to suggest that the estimates of Lambey’s attorney were announced as only estimates on which Lambey could not rely. A review of the entire transcript attending the plea of guilty, A. 87-101, indicates that the district judge did not mention the estimates of Lambey’s attorney, neither did he state that any such estimate could not be relied upon.4 Lambey later testified, and in his testimony he is corroborated by the documentary sentencing table given by him by his attorney, plaintiff’s ex. II, A. 104, that his attorney erroneously had informed him that the maximum sentence of 360 months to life did not apply to him, and consequently Lambey was under the impression at the Rule 11 hearing that the court’s admonition regarding that sentence did not apply to him. See A. 47. When an attorney’s advice was so incorrect, as here, as to distort the defendant’s entire understand*1406ing of the significance of the Rule 11 colloquy, I would hold that the defendant is not thereby barred from withdrawing his plea.
It is of course true that the 1983 amendments to Fed.R.Crim.P. 32(d) have made the withdrawal of guilty pleas more difficult. However, this court wisely has heretofore avoided sweeping holdings that create unnecessarily inflexible rules regarding the circumstances under which a guilty plea may be withdrawn. Our desire to impart finality to criminal proceedings should not outweigh a defendant’s right to be tried, and especially by jury, when that right was waived under circumstances such as those present here.
Lambey had no one to turn to except his attorney, unless the probation officer is counted. The attorney admittedly gave Lambey incorrect advice of great magnitude, which mistake obviously was caught by the probation officer. Immediately upon being advised of the mistake, Lambey asked to have his plea withdrawn. This act and the documentary corroboration of the mistake of his attorney established beyond a doubt his- good faith. Moreover, there was nothing else that Lambey could do at the time except seek to withdraw his plea. The effect of the majority opinion is such that advice from the court as to the length of the maximum sentence “[a]nd that under guideline sentencing, no one can accurately predict what your sentence will be until such time as a presentence report has been made available to the court,” A. 94, is to impose a per se rule, an impenetrable shield behind which the government can hide, and avoid even the great and admitted mistake of an attorney such as that which occurred here.
The Sentencing Guidelines, to put it mildly, have revolutionized sentencing. To construe them, however, as the majority does in this case, is to withdraw from the proceeding the element of fairness. I do not think they are meant to be construed, and neither is Rule 11 nor Rule 32, to uphold an ironclad requirement of pleading blind in the face of admittedly grossly erroneous advice of an attorney. That is the result obtained here.
Accordingly, I would vacate the judgment of the district court and remand for entry of a new plea to the offenses charged.
I am authorized to state that Circuit Judge SPROUSE joins in this opinion.
. I think it clear that the district court correctly applied the Sentencing Guidelines in Lambey's case, see maj. op. p. 1393, note *; United States v. DePew, 932 F.2d 324, 328-29 (4th Cir.1991), and that his trial counsel’s estimate thus was grossly understated.
. On December 29, 1989, nine days after the receipt of the first letter, the district court received from Lambey a second letter dated December 21, 1989, in which he stated that he had "no desire to withdraw [his] plea at this time." However, this letter is of no significant consequence in my view of this case. No one other than the district court received a copy of the letter or was even aware of its existence until the day of the sentencing hearing, February 13, 1990. Notwithstanding Lambey’s second letter to the court, his motion to withdraw his plea was properly made or renewed by formal motion on February 12, 1990. The import of the February 12th motion can not be misunderstood.
. Only the second factor militates against Lam-bey; thus far he has offered no credible argument of innocence to the offenses charged.
. The plea agreement itself, which Lambey signed, contains only warnings similar in their generality to those given by the district judge from the bench. That document provides, in relevant part:
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.
This language obviously was insufficient to put Lambey on notice that the specific estimates provided him by his attorney were grossly understated. This paragraph states only that estimates are not binding on the government, the probation office, or the court, and makes no attempt to suggest that such estimates cannot be relied upon by the defendant in deciding whether to waive his right to trial and plead guilty. The insertion of such boilerplate language simply is not a proper substitute for a searching inquiry by the district judge, when called upon as here, as to whether the defendant is laboring under a grave misunderstanding regarding the potential punishment that he faces.