United States v. Dean A. Lambey

949 F.2d 133, 1991 U.S. App. LEXIS 27055, 1991 WL 238321

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 18, 1991
• Docket: 90-5619
• Status: Published

Opinions

OPINION

NIEMEYER, Circuit Judge:

Dean A. Lambey pled guilty to a two-count information charging him in count one with conspiracy to kidnap a minor in violation of 18 U.S.C. § 1201(c) (1988) and in count two 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) (1988). 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 360 months in prison on the conspiracy count and 120 months on the pornography count, the terms to run concurrently. Lambey appeals, arguing that the district court erred in refusing to grant his motion to withdraw his plea and that the court failed 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. 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 phone 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 Lambey had spotted a child who appeared to be about thirteen years old riding his bicycle in an industrial area of Richmond. When Lambey indicated his plan that this child be the victim, Lambey was arrested.

With the advice of retained counsel, Lam-bey negotiated and agreed to a plea agreement. While discussing the plea agreement with Lambey, his counsel said that he “felt” the case would fall into the sentencing guidelines category providing for a sentence of 78-108 months, but that he “couldn’t predict” the specific sentence Lambey would receive. The plea agreement itself expressly provided 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.

At a 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 court advised him that he could receive a life sentence on count one and ten years on count two and that the sentences could be imposed consecutively. The court also stated, “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.” Finally, the court received the statement of Lambey’s attorney that the attorney, 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 [he] had tentatively figured and what [Lambey] was thinking.” Lambey asked to speak with his lawyer and later moved to withdraw his plea. The district court denied the motion and subsequently sentenced Lambey to 360 months imprisonment on count one and a concurrent 120 months on count two.

II

Lambey contends on appeal that his motion to withdraw his guilty plea should have been granted because if it were not for his attorney’s erroneous estimate on the applicable sentencing guideline range, he would have gone to trial. Lambey also notes that the court failed, pursuant to Fed.R.Crim.P. 11(e)(2), to inform him that he could not withdraw his plea once rendered. We find neither of these arguments compelling.

Fed.R.Crim.P. 32(d), 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. Rule 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 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 the applicability of 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. While we do not rule out the possibility that a misapprehension of the likely sentence, based on a clear error in the advice provided to the defendant, 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, we conclude that when information given by the court is said to conflict with earlier 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 dialogue between the court and defendant.

Thus, even though Lambey’s discussion with his attorney may have led him to expect a particular sentence range, 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 must be accepted. 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 agreement.

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. See Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-29, 52 L.Ed.2d 136 (1977). When the basis for withdrawing a plea is the advice given by an attorney, the defendant must show that “counsel’s performance ‘fell below an objective standard of reasonableness’ ” and that but for the error, he would probably have insisted on a trial. United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir.1989) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)); cf. Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir.1981) (to attack plea, the defendant must show that the advice received was not “within the range of competence demanded of attorneys in criminal cases”).

In the circumstances presented here, where the estimates of Lambey’s attorney were announced as only estimates on which Lambey could not rely and where 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 and in refusing to permit Lam-bey 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). Even if the attorney’s estimate could be shown to have been made erroneously, an error in estimation is not the basis for setting aside a plea. See, e.g., United States v. Sweeney, 878 F.2d 68, 70 (2d Cir.1989) (attorney’s mistaken estimate of guideline range does not justify withdrawal of guilty pleas under Rule 32(d)).

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 of 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:

* * a}c * * *

(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, we affirm the district court’s denial of Lambey’s motion to withdraw his guilty plea and accordingly affirm Lambey's sentence.

AFFIRMED.