dissenting.
Because the record does not clearly indicate that the attorney who advised Dixon during plea negotiations denies having given Dixon erroneous advice concerning the sentencing range applicable to the firearm-possession charge, I would remand for a further evidentiary hearing, and therefore I respectfully dissent.
During the evidentiary hearing on Dixon’s motion to withdraw his plea agreement, his former attorney, Michael J. Love, testified that he had advised Dixon during plea negotiations that, if convicted of Count Eight (the firearm-possession charge, which was ultimately dismissed pursuant to the agreement), Dixon would be subject to a five-year mandatory-minimum sentence that would run consecutively with any other sentence handed down. Notably, during that hearing, Love did not merely agree with the Assistant United States Attorney’s characterization of the sentencing implications of the firearm charge and the impact of the charge on Dixon’s decision to accept the offered plea agreement. Rather, Love affirmatively and repeatedly stated that he had specifically advised Dixon that the minimum sentence that Dixon would face if convicted of the firearm charge was five years’ imprisonment and that that fact was important in persuading Dixon to accept the plea bargain.
Love’s testimony included the following statements: “It would carry a five year sentence, whether it was consecutive or not, it’s a flat five year sentence. That’s how I would have conveyed it to the client.” “I believed it to be a flat sentence at that time.” “I wouldn’t have said 60 months. I believe I said five years.” “If he was convicted of that count, it was my understanding that it was a five year sentence, it was a flat sentence, that the Court didn’t have any discretion to lower that sentence. The statutory penalty is five years.” Joint Appendix (“J.A.”) at 151-53 (Tr. of Hr’g on Mot. to Withdraw at 86-88). When asked whether he had advised Dixon that avoidance of the firearm charge was a great benefit of the offered plea, Love responded, “... yes.” J.A. at 158 (Tr. of Hr’g on Mot. to Withdraw at 88). He testified that the five-year sentencing provision “was a big consideration” and that “it was [Love’s] estimation that [Dixon] was going to be well-served by getting that charge dismissed rather than trying to go to trial on that issue.” J.A. at 132 (Tr. of Hr’g on Mot. to Withdraw at 67).
Following the hearing, however, Love submitted an affidavit to the district court, to the effect that his testimony regarding the sentencing range applicable to the possession charge had been erroneous and the result of a misunderstanding. He concluded:
I believe that the resulting depiction in argument: that advanced a notion that I improperly advised Mr. Dixon of maximum sentences, or coerced his plea with a false incentive by an inaccurate depiction of possible sentences if Mr. Dixon should go to trial, is grossly inaccurate and not grounded in fact.
J.A. at 49-50 (Love Aff. at 1-2). In its subsequent Memorandum Order denying Dixon’s motion to withdraw his plea, the district court stated, referring to Love’s *439affidavit, that “Defendant’s former attorney clarified that he accurately gave the Defendant the correct information on the dismissed charge.” J.A. at 54 (Dist. Ct. Mem. at 2).
The district court’s finding is not supported by the record and therefore constitutes an abuse of discretion. Love never explicitly repudiated his statements, made under oath at the evidentiary hearing, that he had advised Dixon that the minimum sentence for the firearm violation was five years and that Dixon had relied upon that advice in accepting the plea offer. Moreover, his subsequent assertion, in his affidavit, of a “belie[f]” that he gave accurate advice suggests, in fact, that he cannot remember exactly what he told Dixon more than three years ago. In any event, his credibility is at least undermined by his willingness to testify, at the motion hearing, to specific details that he apparently did not remember.
Under these circumstances, I would REMAND this case to the district court for an evidentiary hearing to determine precisely what Love told Dixon regarding the sentencing provision applicable to the firearm-possession charge and the impact of any inaccurate advice on Dixon’s decision to accept a plea. See Pitts v. United States, 763 F.2d 197, 200-01 (6th Cir.1985) (“An evidentiary hearing is needed on this issue to determine whether the ... misstatement was material to [defendant’s] decision, or, in other words, to determine whether [defendant] would not have pleaded guilty but for the misstatement.”). Accordingly, I respectfully dissent.