But where, as here, a court expressly retains the power to determine relevant facts bearing on sentencing under the guidelines, "a defendant cannot claim . . . that the plea is rendered involuntary when the court exercises this power." United States v. Williams, 919 F.2d 1451, 1456 (10th Cir. 1990), cert. denied, 499 U.S. 968, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991); accord United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990). In short, a defendant's lament that he misjudged the consequences of his guilty plea, without more, is not a fair and just reason for setting the plea aside.
While "[f]amiliarity with the structure and basic content of the Guidelines . . . has become a necessity for counsel who seek to give effective representation," United States v. Merritt, 102 F. App'x 303, 308 (4th Cir. 2004) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992), plea agreements are generally held to be knowing and voluntary notwithstanding "a defense attorney's erroneous calculation and prediction of the sentencing guidelines." United States v. Hicks, 4 F.3d 1358, 1363 n.3 (6th Cir. 1993) (citing United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990)). Failure of defense counsel to accurately predict a sentence does not constitute defective performance.
Numerous courts have held that plea agreements and waivers were knowingly and intelligently entered even when a particular defendant was unaware how severely he would be sentenced. See, e.g., United States v. Smith, 143 F. App'x 559, 561 (5th Cir. 2005) (rejecting defendant's claim that the failure to inform him of a potential career offender enhancement rendered his plea involuntary); United States v. Wilhite, 929 F.2d 702 (6th Cir. 1991) ("Concerns for due process do not require that a criminal defendant be placed on advance notice of the application of a career offender sentence under Guideline 4B1.1, so long as the defendant has, as he was in the instant case, been afforded an adequate opportunity to challenge the factual basis for applying the enhancement."); Unites States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990) ("Because appellant was fully aware that his ultimate sentence under the agreement was subject to later determination by the court based on a variety of factors at the time he entered into it, the fact that he did not know specifically that he would be subject to sentencing in [a particular] range does not mean that it was entered into unknowingly and unintelligently."); United States v. Brown, No. 07-2309, 2010 U.S. Dist. LEXIS 76286, at *24 (W.D. Tenn. July 23, 2010) (noting that while the defendant "was not specifically advised, during the Rule 11 colloquy, about the potential for a career offender enhancements," his conviction would not have been overturned because "the presentence report afforded him reasonable notice that the judge would be considering the enhancement, and he was afforded the opportunity to be heard on the issue"). Both the record and the applicable law compel the conclusion that Elliott's plea and waiver were knowingly and voluntarily entered.
While "[f]amiliarity with the structure and basic content of the Guidelines . . . has become a necessity for counsel who seek to give effective representation," United States v. Merritt, 102 F. App'x 303, 308 (4th Cir. 2004) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992), plea agreements are generally held to be knowing and voluntary notwithstanding "a defense attorney's erroneous calculation and prediction of the sentencing guidelines." United States v. Hicks, 4 F.3d 1358, 1363 n. 3 (6th Cir. 1993) (citing United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990)). Failure of defense counsel to accurately predict a sentence does not constitute defective performance.
"[T]he mere fact that an attorney incorrectly estimates the sentence a defendant is likely to receive is not a 'fair and just' reason to allow withdrawal of a plea agreement." United States v. Stephens, 906 F.2d 251, 253 (6th Cir. 1990). During the plea colloquy, the district court explained to Lewis that anything his attorney told him about how the sentencing guidelines might apply in his case was just "his best estimate as a very experienced trial lawyer; but nobody knows."
We rejected Hodge's argument because "the district court need not identify a particular sentencing range under the Guidelines when accepting a guilty plea as long as the defendant is made aware of the maximum potential sentence and the fact that the Guidelines operate to create a sentencing range under the statutory maximum within which the district court may exercise its discretion. " Id. at 553-54 (citing United States v. Stephens, 906 F.2d 251, 253-54 (6th Cir. 1990)). In Hodge, as here, "the district court did not have the benefit of the PSR's conclusions, which inform the district court's findings for amount of loss. "
This claim is meritless. It is true that the district court declined to identify at the plea hearing the specific amount of loss that would be used to determine Hodge's sentence. As the government points out, however, the district court need not identify a particular sentencing range under the Guidelines when accepting a guilty plea as long as the defendant is made aware of the maximum potential sentence and the fact that the Guidelines operate to create a sentencing range under the statutory maximum within which the district court may exercise its discretion. See United States v. Stephens, 906 F.2d 251, 253-54 (6th Cir. 1990) (upholding district court's denial of motion to withdraw guilty plea where defendant was informed of consequences of guilty plea, knew maximum sentence of imprisonment, and understood that court would sentence defendant according to the Guidelines even though defendant did not know specific Guidelines range to which he was exposed). Indeed, any effort by the district court to determine the amount of loss at the plea colloquy would have been premature, as the district court did not have the benefit of the Presentence Investigation Report's conclusions, which inform the district court's findings for amount of loss.
We review the district court's decision for abuse of discretion. United States v. Stephens, 906 F.2d 251, 252 (6th Cir. 1990). Federal Rules of Criminal Procedure Rule 32(e) (formerly Rule 32(d)) states "[i]f a motion to withdraw a plea of guilty . . . is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason."
Our conclusion is buttressed by three recent decisions of our sister circuits. In United States v. Stephens, 906 F.2d 251 (6th Cir. 1990), the defendant, Herbert Stephens, was convicted of concealing his son from police attempting to serve a warrant charging the son with conspiracy to distribute cocaine and damaging a vehicle with explosives. Stephens pled guilty and was sentenced as an accessory to his son's narcotics offenses. In disposing of Stephens' subsequent contention that his guilty plea was not knowing because he was unaware of the quantity of cocaine involved in the conspiracy, the court noted that "Appellant's base offense level was . . . tied directly to his son's offense level, which was in turn determined by the amount of cocaine with which his son was involved. . . ."
If neither the plea agreement nor the court has guaranteed the defendant that the plea agreement stipulations are binding, a defendant cannot claim undue surprise or that the plea is rendered involuntary when the court exercises this power. See United States v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990). An attorney has more limited duties to the defendant, but she can potentially nullify a plea agreement if she materially misinforms the defendant of the consequences of the plea or the court's probable disposition.