holding that district court’s statements during Rule 11 plea hearing concerning defendant’s potential sentence, coupled with defendant’s acknowledgment at hearing that he understood this information, defeats claim that defendant’s counsel misinformed defendant of possible sentence
How later courts described this case
- holding that district court’s statements during Rule 11 plea hearing concerning defendant’s potential sentence, coupled with defendant’s acknowledgment at hearing that he understood this information, defeats claim that defendant’s counsel misinformed defendant of possible sentence
- holding that if a defendant has a proper Rule 11 colloquy, any misapprehension by the defendant regarding the length of the sentence to be imposed is not a "fair and just" reason to allow withdraw of a guilty plea under Fed. R. Crim. 32
- holding that an appropriately conducted Rule 11 hearing raises a strong presumption that the plea is final and binding, and articulating a non-exhaustive list of factors in considering a motion to withdraw
- recognizing a “presumption that [a] plea [of guilty] is final and binding” if the plea was made during a properly conducted hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure
Written by the judges who cited it.
The opinion
K.K. HALL, Circuit Judge,
dissenting:
Dean Lambey conspired with Daniel De-pew to kidnap a boy and to then sexually abuse and murder him in the process of making a “snuff” movie. For this he was sentenced to thirty years in prison. Even to talk of such awful crimes is abhorrent, but the extent of what occurred was just that, talk. If a defendant, instead of talking about kidnapping his intended victim, conspires to murder him, attempts to murder him, and inflicts permanent or life-threatening injuries, his guideline range would nevertheless be strikingly lower than the 360-life range applied to Lam-bey’s conspiracy conviction. 1
The majority acknowledges that counsel for Lambey had attended training courses on the sentencing guidelines and had consulted with other attorneys before giving his estimate as to the probable sentence. In my view, this estimate was based on the interpretation of the applicable guidelines that should have been used by the trial court. Instead, the trial court twisted and contorted the guidelines so as to impose a sentence far in excess of that justified by a fair reading of the guidelines.
Part III of Judge Murnaghan’s dissent describes what was done in computing Lambey’s sentence. In my view, the correct computation should have been as follows:
(1) Determine the offense guideline most applicable to the offense of conviction (conspiracy to kidnap). U.S.S.G. § lB1.2(a). *1407 Inasmuch as no guideline expressly covers conspiracy to kidnap, § 2X1.1 directs the use of the provision for the object offense, 1.e., kidnapping.
(2) The kidnapping guideline, § 2A4.1, prescribes a base level of 24, and § 2Xl.l(b)(2) requires a decrease of three levels, to 21.
(3) Under “special offense characteristics,” § 2A4.1(b)(5) states: “If the victim was kidnapped ... to facilitate the commission of another offense: (A) increase by 4 levels [yielding an offense level of 25]; or (B) if the result of applying this guideline is less than that resulting from application of the guideline for such other offense, apply the guideline for such other offense.”
(4) Section 2X1.1(c) provides that “[w]hen a conspiracy is expressly covered by another offense guideline section, apply that guideline section.” There did (and does) exist an offense guideline for ‘conspiracy to murder’ (§ 2A2.1, now found at § 2A1.5), one that would have yielded an offense level of only 20. Inasmuch as this is less than the level of 25 under § 2A4.1(b)(5)(A), it would not be used. 2
(5) Applying the same adjustment as the district court (2 level increase under § 3A1.1, ‘Vulnerable Victim’) gives a total offense level of 27. With a criminal history score of I, the guideline range should have been 70-87 months.
If the guidelines are so ambiguous that several judges of a court of appeals would reach sentence ranges that differ by twenty years and more, an accused certainly should not be held to guess at his risk when contemplating a plea. I would vacate the sentence and remand for resentencing, 3 without foreclosing the possibility of a departure. However, in the event the Supreme Court should find the guidelines were properly applied, Lambey should, at the very least, have the option of withdrawing his plea. With this qualification, I concur with Judge Widener’s analysis of the plea withdrawal issue.
. A conspiracy and attempt to murder gives a base offense of 20, plus a 6-level increase for "permanent or life-threatening bodily injury." U.S.S.G. § 2A2.1(a), (b)(3)(C) (Nov. 1989). This translates (based on the same adjustments and criminal history score applied to Lambey) to a range of 78-97 months.
. By deducting three levels pursuant to § 2X1.1(b)(2), the majority acknowledges (as of course it must) that only a conspiracy to murder was involved. The use of § 2X1.1(b), however, ignores both the heading of the guideline ("Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline)") as well as the express cross-reference in subsection (c).
. I am not suggesting that 70-87 months is necessarily the correct range, only that it should be the end result if the route chosen by the district court to navigate through the guidelines is followed. Inasmuch as the plea stipulation establishes that the kidnapping was intended to facilitate the sexual abuse of the victim, U.S.S.G. § 2A3.1 would appear to yield an appreciably higher offense level than § 2A2.1 (Nov. 1989).