Opinion
Case No.: C2-00-24.
March 12, 2001.
MEMORANDUM AND ORDER
The Court received a motion to withdraw guilty plea filed by the above named defendant. The United States resisted the motion. The parties were heard on this issue on March 8, 2001. At the conclusion of the presentation, the motion was DENIED. This written order follows.
Defendant was charged in a single count indictment with illegal possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1), 924(a)(2), and 2. On January 3, 2001, defendant appeared before the Court for a change of plea hearing. At the hearing, the Court reviewed his plea agreement with the government with the defendant. The agreement specifically noted that it was reached pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure. Such plea agreements are recommended sentencing agreements which are not binding on the Court. See Fed.R.Crim.P. 11(e)(1)(B).
In fact, in paragraph eighteen of the agreement, the defendant specifically acknowledged that "[i]t is understood by the parties that the sentencing judge is neither a party to nor bound by this agreement and is free to impose the maximum penalties as provided by law." In addition, in paragraph twenty, defendant acknowledged that he "understands that the recommendations concerning the sentence to which the attorneys have agreed herein are not binding on the court or on the Probation and Pretrial Services Office. Defendant further understands that if the court or Probation and Pretrial Services Office do not accept any or all recommendations or requests, the defendant nevertheless has no right to withdraw the guilty plea." In the agreement, the parties also stipulated to a base offense level of 20 for defendant's conduct pursuant to § 2K2.1 of the United States Sentencing Guidelines Manual. The United States agreed to recommend a 3 level downward adjustment for acceptance of responsibility pursuant to § 3E1.1 of U.S.S.G. Thus, the agreement embodied a recommended net offense level of 17. Sentencing was set for March 8, 2001 at 10:00 a.m. in Grand Forks.
In preparing the court ordered presentence investigation report (PSIR), the supervising probation officer concluded that the base offense level for defendant's conduct was actually 24 pursuant to § 2K2.1 of U.S.S.G. This change in base offense level significantly altered the range of imprisonment that defendant faced. Based on this change, defendant moved to withdraw his guilty plea.
At the sentencing hearing, the Court concurred with the probation officer's guideline calculation and found that defendant's base offense level was 24.
Before sentencing, a court may allow a defendant to withdraw his guilty plea if the defendant shows any fair and just reason for doing so. See Fed.R.Crim.P. 32(e); United States v. Burney, 75 F.3d 442, 444 (8th Cir. 1996). Defendant, however, has no absolute right to withdraw his guilty plea before sentencing. Burney, 75 F.3d at 444. The decision to allow withdrawal is committed to the sound discretion of the district court. Id.
It is well settled that a "defendant's misapprehension of the application of the Guidelines to his sentencing does not constitute a fair and just reason for withdrawing a plea so long as the defendant was told the range of potential punishment and that the Guidelines would be applied to determine his sentence." Id. at 445. See also United States v. D'Angelo, 172 F.3d 1046, 1047 (8th Cir. 1999) (defendant's reliance on erroneous legal advice, regarding sentencing guidelines, from his counsel in deciding to enter a guilty plea does not provide ground for withdrawing the plea); United States v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (defense counsel's erroneous estimate of a guidelines sentence does not render an otherwise voluntary plea involuntary); United States v. Mahler, 984 F.2d 899, 902 (8th Cir. 1993) (defendant not entitled to withdraw his plea because when he made it he was under the misapprehension that his sentence would be in the 63-78 month range); United States v. Ludwig, 972 F.2d 948, 950-51 (8th Cir. 1992) (even if defendant misunderstood the application of the Guidelines to his sentence, this would not entitle him to withdraw his guilty pleas).
In this case, during the change of plea hearing, the Court informed the defendant of the statutory maximum sentence that he faced and further informed the defendant that the Guidelines would be used to determine his sentence. See Fed.R.Crim.P. 11(c). (See Doc. #19). That the guideline calculation estimated at the change of plea hearing differed from the probation officer's calculation is of no moment. See Bond, 135 F.3d at 1248 (noting that in accepting a guilty plea, the district court is not obligated to inform the defendant of the applicable guideline range or the actual sentence he would receive).
Neither is it significant that the parties stipulated to a certain base offense level. Defendant clearly and correctly recognized in his plea agreement that such stipulations are not binding on the Court. See Fed.R.Crim.P. 11(e)(1)(B). Under these circumstances, the Court is not required to give the defendant an opportunity to withdraw his plea. See Good Bird v. United States, 752 F.2d 349, 351 (8th Cir. 1985) (noting that Rule 11(e)(4) does not apply to Rule 11(e)(1)(B) type plea agreements; therefore, court did not have obligation to allow defendant an opportunity to withdraw his guilty plea when sentence imposed was other than that recommended); United States v. Missouri Valley Const. Co., 704 F.2d 1026 (8th Cir. 1983) (same).
The Court is aware that this case has significant subsequent history; however, that history is unrelated to the proposition for which it is cited.
In sum, the defendant has not persuaded the Court that there is a "fair and just" reason to allow him to withdraw his guilty plea. Fed.R.Crim.P. 32(e). Consequently, the motion is DENIED.
IT IS SO ORDERED.