dissenting.
I agree with the majority that the “core concerns” of Rule 11 are whether the plea was coerced, whether the accused understood the nature of the charges, and whether the accused understood the consequences of the plea. I disagree with the majority’s conclusion that the “core concerns” were not.met by the plea here.
Defendant apparently challenges the last of these concerns, claiming that he did not understand the consequences of his plea. He testified that his lawyer told him he would get a probationary sentence. He admits that the judge specifically told him that he could receive up to a year in jail and that the judge was not bound to accept the government’s recommendation of probation. Defendant testified that despite this statement from the judge, he believed that the plea agreement required a probationary sentence. He believed his lawyer over the judge. He was told by the judge that he could withdraw his plea if the plea agreement was not accepted. The plea agreement he thought he had for probation was not accepted. Therefore, he should be able to withdraw his plea.
The District Court found that it had told defendant the plea agreement was only for a recommended sentence and the judge could impose jail time up to a year. The judge told defendant what would occur if he did not accept the agreement, namely that the plea could be withdrawn. Although he failed to tell defendant that if the judge accepted the plea agreement the plea could not be withdrawn, the failure to include that advice seems to me harmless. The judge had stated the circumstances under which the plea could be withdrawn. An educated, experienced businessman like defendant should understand that in all other circumstances there was no right to withdraw the plea.
The real problem with the plea here is that defendant’s lawyer told defendant that he would get a probationary sentence. The lawyer thought that the court always followed the recommendation of the government for probation, and that the only question would be whether the probation would be supervised or unsupervised. The judge ■told both defendant and his lawyer that whether to grant probation was up to the *308judge and only the judge. Both chose to disregard the judge’s admonition. That does not entitle defendant to set aside his plea. The judge clearly advised defendant of the judge’s discretion to impose a jail sentence. Defendant was aware he could be sentenced to imprisonment if he pled guilty.
As the Second Circuit pointed out in United States v. Sweeney, 878 F.2d 68 (2d Cir.1989) (per curiam):
Defendants may not plead guilty in order to test whether they will get an acceptably, lenient sentence. Society has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas “undermines confidence in the integrity of our [judicial] procedures ..., increases] the volume of judicial work, [and] delays and impairs the orderly administration of justice.”
Id. at 70 (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979)). The District Court’s error in failing to advise defendant that he could not withdraw his plea once it was accepted, did not affect his substantial rights and should be disregarded.
I would affirm the District Court’s order denying defendant’s motion to withdraw his guilty plea.