United States v. William T. Burney ( 1996 )

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No. 95-2686
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
William Terrell Burney, *
*
Defendant-Appellant. *
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Submitted: November 14, 1995
Filed: February 7, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
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FLOYD R. GIBSON, Circuit Judge.
William Burney appeals the district court's1 order denying his
motion to withdraw his guilty pleas to three firearm violations.
We affirm.
I. BACKGROUND
On March 22, 1994, a three-count indictment was returned
against William Burney charging him with two counts of being a
felon in possession of a firearm in violation of 18 U.S.C. §§
922(g)(1) and 924(e)(1) (1988) (Counts I and II), and one count of
possession of an unregistered firearm in violation of 26 U.S.C. §§
5861(d) and 5871 (1988) (Count III). On March 29, Burney pleaded
1
The Honorable Stephen H. Limbaugh, United States District
Judge for the Eastern District of Missouri.
guilty to all three counts pursuant to a written plea agreement in
exchange for the Government's agreement to delete all references to
18 U.S.C. § 924(e)(1) in Counts I and II.
Due to the application of section 5G1.2(d) of the United
States Sentencing Guidelines,2 the presentence investigation report
recommended a guideline sentencing range of 168 to 210 months
imprisonment. On June 14, 1995, the day he was to appear for
sentencing, Burney filed a motion to withdraw his pleas of guilty
pursuant to Fed. R. Crim. P. 32(e). Burney alleged in his motion
that he been misled by both his defense counsel and the district
court to believe that his maximum sentence could not exceed ten
years imprisonment. Burney testified in support of his motion that
he had been unaware of USSG §5G1.2(d) and its effect on his
sentencing range, and that had he known that he faced a fourteen-
year minimum sentence, he never would have pleaded guilty.
The district court denied the motion, finding that Burney's
pleas were competently and voluntarily given with full knowledge of
the maximum possible penalty. The district court went on to adopt
the recommendations contained in the presentence investigation
report and subsequently sentenced Burney to 120 months imprisonment
on Count I, 90 months imprisonment on Count II to be served
concurrently with the term imposed in Count I, and 90 months
imprisonment on Count III to be served consecutively with the terms
imposed in Counts I and II, resulting in an aggregate term of 210
months imprisonment. The court also sentenced Burney to two years
of supervised release and imposed an aggregate special assessment
of $150. Burney appeals.
2
"If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment." USSG
§5G1.2(d).
2
II. DISCUSSION
"It is well settled that a defendant does not have an absolute
right to withdraw a guilty plea before sentencing." United States
v. Newson, 46 F.3d 730, 732 (8th Cir. 1995). Instead, the burden
is on the defendant to establish a fair and just reason for the
withdrawal. Fed. R. Crim. P. 32(e); Newson, 46 F.3d at 732. This
determination lies within the sound discretion of the trial court,
and we will reverse its decision only for an abuse of discretion.
United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991), cert.
denied, 504 U.S. 921 (1992).
Burney argues that he established a fair and just reason for
withdrawing his pleas when he testified that both defense counsel
and the district court had misled him to believe that the maximum
possible prison sentence he could receive was ten years. Had he
known that he faced a minimum sentence of fourteen years, or even
the possibility of consecutive sentencing, Burney argues that he
never would have pleaded guilty. As such, he asserts that his
pleas were neither knowing nor voluntary.
We disagree. Neither the terms of the plea agreement nor the
prosecuting attorney ever promised Burney that he would be entitled
to a specific sentencing range. In addition, the district court
made it clear to Burney before it accepted his pleas that he should
not and could not rely on estimations of his possible sentencing
range. First, the district court informed him that the maximum
statutory penalty for each of the three offenses was ten years
imprisonment. The district court then advised Burney that the
presentence investigation report would recommend a sentencing range
pursuant to the United States Sentencing Guidelines. It went on to
state that it could not predict what that range would be, and that
any estimation of the possible sentencing range by defense counsel
or anyone else could be wrong. Burney stated that he understood
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all of this. Finally, the district court asked Burney if he was
entering his pleas solely on the basis of what defense counsel or
someone else may have estimated his sentence range would be.
Burney replied that he was not.
Based on this colloquy, the district court concluded at
sentencing that Burney, despite any erroneous predictions on the
part of defense counsel, was fully aware of the potential range of
punishment to which he was exposing himself through his pleas. We
agree. Even if Burney, despite the best efforts of the district
court, was in fact laboring under the misconception that he faced
a total maximum sentence of ten years, our decision would remain
the same. 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. United States v. Hoelscher, 914
F.2d 1527, 1544 (8th Cir. 1990), cert. denied, 500 U.S. 943 (1991).
This remains true even where such a misunderstanding is based on an
erroneous estimation by defense counsel. United States v. Ludwig,
972 F.2d 948, 950-51 (8th Cir. 1992).
Burney further contends that the district court itself misled
him into believing that he faced no more than ten years total
imprisonment when it informed him that the maximum term of
imprisonment for each count was ten years. By failing to warn him
of the possibility of consecutive sentencing, Burney asserts that
the district court failed to inform him of "the mandatory minimum
penalty provided by law, if any, and the maximum possible penalty
provided by law" as required by Fed. R. Crim. P. 11(c)(1).
We believe, however, that the district court fulfilled its
Rule 11(c) obligations by explicitly informing Burney twice that
the maximum term of imprisonment for each of the three counts was
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ten years.3 Rule 11 does not require the sentencing court to
inform the defendant of the applicable guideline range or the
actual sentence he will receive. Thomas v. United States, 27 F.3d
321, 324 (8th Cir. 1994) (holding that defendant had no right to be
specifically apprised of effect of career offender provision on his
sentencing range). "The defendant's right to be apprised of the
court's sentencing options is no greater than the provisions of
Fed. R. Crim. P. 11(c)(1), which requires only that the court
inform the defendant of the applicable mandatory minimum and
maximum sentences." Id.
To the extent that the sentencing court is obligated under the
terms of Rule 11(c)(1) to disclose the possibility of consecutive
sentencing in order to fully apprise the defendant of the mandatory
minimum and the maximum possible penalty provided by law, we
believe that the district court implicitly did so by telling Burney
that ten years was the maximum term of imprisonment for each of the
three counts. See United States v. Hamilton, 568 F.2d 1302, 1306
(9th Cir.) (per curiam), cert. denied, 436 U.S. 944 (1978).
(Court's warning that defendant was subject to a possible 15-year
sentence as to each of two counts implicitly alerted defendant to
the possibility of consecutive sentencing). Taken out of context,
the district court's statement that the maximum possible sentence
on each count could not exceed ten years could seem misleading.
But when we examine the plea colloquy in its entirety, we are
satisfied that the district court fully informed Burney of the
consequences of his pleas. As such, we conclude that the district
court did not abuse its discretion in concluding that Burney has
failed to establish a fair and just reason for withdrawing his
3
District court: "You understand that these are the maximums
as provided by law as to each of these three counts?"
Burney: "Yes, sir, I do." [tr. p.27].
District court: "It's no time in jail up to ten years as to
each of the three counts." [tr. p.29].
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guilty pleas.
III. CONCLUSION
For the above reasons, we affirm the district court's denial
of Burney's motion to withdraw his pleas of guilty.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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