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
PHILLIPS, Circuit Judge,
dissenting:
I agree with the essential points made in Judge Widener’s dissenting opinion, and with the result that he would reach: a remand to allow withdrawal of the guilty plea and repleading. I write separately only because of disagreement with his view on the sentencing issue and its effect on the withdrawal issue.
First off, I agree that in assessing whether the district court erred in refusing to allow withdrawal of the plea because of counsel’s mistaken advice, the proper question regarding counsel’s mistake and its effect is whether it provided a “fair and just reason”, per Fed.R.Crim.P. 32(d), for allowing withdrawal, rather than whether it amounted to constitutionally ineffective assistance of counsel under the much sterner test of Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). See United States v. Sweeney, 878 F.2d 68, 70 (2d Cir.1989) (Rule 32(d) standard rather than constitutional standard appropriate in assessing withdrawal rulings in direct federal appeals); United States v. Bennett, 716 F.Supp. 1137 (N.D.Ind.1989), aff'd 907 F.2d 152 (7th Cir.1990) (less stringent Rule 32(d) standard controls). As Judge Widener notes, our decision in United States v. DeFreitas, 865 F.2d 80 (4th Cir.1989) is to the contrary, applying the constitutional standard in a direct federal appeal. He forthrightly says DeFreitas is wrong on this point and that we should overrule it. I agree.
I then agree with his persuasive demonstration that under Rule 32(d)’s more flexi *1408 ble “fair and just reason” standard, the district court abused its discretion in not allowing withdrawal. But I do not agree that this turns on the fact that the sentence imposed was a proper one, hence defense counsel’s advice a real mistake. In my view, it is enough that the lawyer’s advice was so far wide of the position that the government took at sentencing — without regard to whether that position, which the sentencing court acted upon, was legally correct and counsel’s position wrong. Indeed on this appeal in which the defendant, as appellant, raised only the withdrawal issue, I think we should not sua sponte have raised and addressed the issue whether the sentence imposed was legally correct. That should have been left for later resolution — either on an appeal from its reimposition if remand were ordered, or by a § 2255 proceeding if, as has occurred, the refusal to allow withdrawal were affirmed.
With the issue raised, however, I find the dissenting views of Judges Hall and Mur-naghan — that the sentence was an illegal one — persuasive. At least to the point— which is enough for me — of demonstrating that confusion on the point between defense counsel and government counsel was understandable and that facing it for the first time on the eve of sentencing, with no way to know which was right, this defendant had a “fair and just reason” for being allowed to withdraw his plea and take his chances. He should have been given it.
In sum, I would find an abuse of discretion in the denial of defendant’s motion for leave to withdraw, and would remand for repleading without addressing the issue of the legality of the sentence imposed.
Chief Judge ERVIN joins in this opinion.