At page 445 Determining if court disclosure satisfies rule 11 sentencing requirements22 citing cases“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.”
- Broecker v. United States, No. 4:22-cv-04089 (D.S.D. Oct. 30, 2024).A plea is binding “[s]o long as the district court tells a defendant the statutory range of punishment that [s]he faces and informs h[er] that the sentencing guidelines will be used in determining the ultimate sentence.” United States v. R…
- Navarrete v. United States, No. 1:20-cv-00570 (D.N.M. Aug. 11, 2023).(finding no error where district court advised defendant of the maximum imprisonment term for each count, thereby implicitly disclosing “the possibility of consecutive sentencing)
- United States v. Rene Ramirez-Hernandez, 449 F.3d 824 (8th Cir. 2006).published United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996).
- United States v. Hosea Lorinzo Harper, 15 F. App'x 393 (8th Cir. 2001).unpublished(defendant’s misunderstanding of application of Guidelines to his sentence does not constitute fair and just reason for withdrawing guilty plea, even where such misunderstanding is based on erroneous estimation by defens…)
- United States v. Gary Lee Morris, No. 99-3578 (8th Cir. Sept. 12, 2000).unpublished(court’s failure to advise defendant of possibility of consecutive terms did not violate Rule 11 where court had informed defendant of maximum sentence on each count, thus implicitly alerting him to possibility of consec…)
- United States v. Humphrey, 164 F.3d 585 (11th Cir. 1999).published (no requirement to tell defendant about mandatory consecutive sentences)
- United States v. John Bradford Bond, 135 F.3d 1247 (8th Cir. 1998).published“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 Guidel…
- United States v. Donald Lee Baxter, Jr., 128 F.3d 670 (8th Cir. 1997).published (defendant’s misapprehension of application of Guidelines is not fair and just reason so long as defendant was told range of potential punishment and that Guidelines would be applied)
- United States v. Austin Hillman Marks, 85 F.3d 396 (8th Cir. 1996).published United States v. Burney, 75 F.3d 442, 445 (8th Cir.1996).
- United States v. David Woods, 137 F.4th 900 (8th Cir. 2025).published(holding that the “district court fulfilled its Rule 11(c)
Show 8 more citing cases
- United States v. Gregory Harrison, 37 F.4th 495 (8th Cir. 2022).publishedSee Foy, 617 F.3d at 1034 (assuming without deciding that Rule 11 requires disclosure of “the possibility of consecutive sentencing,” quoting United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996)).
- United States v. Richard Molinaro, No. 10-2143 (7th Cir. July 7, 2011).unpublishedIn addition, counsel notes that the district court did not tell Senge that the prison sentence for the gun count was required to run consecutively to his sentence for the bank robbery, see 18 U.S.C. § 924 (c)(1)(D)(ii), but Rule 11 “does n…
- United States v. Molinaro, 428 F. App'x 649 (7th Cir. 2011).unpublishedIn addition, counsel notes that the district court did not tell Senge that the prison sentence for the gun count was required to run consecutively to his sentence for the bank robbery, see 18 U.S.C. § 924 (c)(1)(D)(ii), but Rule 11 “does n…
- United States v. Foy, 617 F.3d 1029 (8th Cir. 2010).published See id. at 444.
- United States v. Miell, 711 F. Supp. 2d 967 (N.D. Iowa 2010).publishedSee United States v. Burney, 75 F.3d 442, 445 (8th Cir.1996) (citing United States v. Hamilton, 568 F.2d 1302, 1306 (9th Cir.) (per curiam), cert. denied, 436 U.S. 944 , 98 S.Ct. 2846 , 56 L.Ed.2d 785 (1978), as holding that a court’s warn…
- State v. White, 587 N.W.2d 240 (Iowa 1998).published See United States v. Burney, 75 F.3d 442, 445 (8th Cir.1996); United States v. Hamilton, 568 F.2d 1302, 1304-05, 1306 (9th Cir.1978); Paradiso v. United States, 482 F.2d 409, 415 (3d Cir. 1973); State v. Wesley, 131 Ariz. 246 , 640 P.2d 17…
- United States v. Adams, 955 F.3d 238 (2d Cir. 2020).published(finding no error where district court advised defendant of the maximum imprisonment term for each count, thereby implicitly disclosing “the possibility of consecutive sentencing)
- United States v. Kevin Simons, No. 17-4225 (6th Cir. Oct. 25, 2018).unpublishedSee, e.g., United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996); United States v. Hamilton, 568 F.2d 1302 , 1304–06 (9th Cir. 1978); United States v. Saldana, 505 F.2d 628, 628 (5th Cir. 1974); Paradiso v. United States, 482 F.2d 409,…
At page 444 Reviewing motion to withdraw guilty plea before sentencing12 citing casesdefendant's misunderstanding of application of Guidelines to his sentencing does not constitute a fair and just reason for withdrawing a guilty plea, even where such misunderstanding is based on an erroneous estimation by defense counsel, so long as defendant was told the range of potential punishm…
- United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114 (N.D. Iowa 2007).publishedSee Order of January 16, 2007 (docket no. 36) at 3^4 (citing Ramirez-Hernandez 449 *1140 F.3d at 826; United States v. Granados, 168 F.3d 343, 345 (8th Cir.1999); United States v. D’Angelo, 172 F.3d 1046, 1047 (8th Cir.1999); United States…
- United States v. Joseph M. Klingner, 167 F. App'x 582 (8th Cir. 2006).unpublishedUnited States v. Burney, 75 F.3d 442, 444-45 (8th Cir.1996).
- Wadsworth v. State, 967 P.2d 337 (Kan. Ct. App. 1998).publishedIn U.S. v. Rubalcaba, 811 F.2d 491 , 494 (9th Cir.), cert. denied 484 U.S. 832 (1987), the court relied on Hamilton to hold that a “trial court need not inform the defendant that the sentences to each count may run consecutively.” In U.S.…
- United States v. Miller, 3 F. Supp. 2d 376 (W.D.N.Y. 1998).published(noting that district court thoroughly explained plea agreement to defendant, and that defendant stated that he understood)
- United States v. Allen, 981 F. Supp. 564 (N.D. Iowa 1997).publishedAlthough the language of the rule was a liberalization of the standards for pre-sentencing motions to withdraw pleas, the Eighth Circuit Court of Appeals has repeatedly stated that “[i]t is well settled that a defendant does not have an ab…
- Douglas Bemis v. United States, 97 F.3d 1456 (8th Cir. 1996).unpublished(defendant's misunderstanding of application of Guidelines to his sentencing does not constitute a fair and just reason for withdrawing a guilty plea, even where such misunderstanding is based on an erroneous estimation…)
- United States v. Foy, 617 F.3d 1029 (8th Cir. 2010).published See id. at 444.
- United States v. Teeter, 561 F.3d 768 (8th Cir. 2009).publishedSee United States v. Burney, 75 F.3d 442, 444-45 (8th Cir.1996).
- United States v. Richard J. Ottman, No. 99-1964 (8th Cir. Nov. 23, 1999).unpublishedSee United States v. Burney, 75 F.3d 442, 444-45 (8th Cir. 1996).
- United States v. Renardo Peebles, 80 F.3d 278 (8th Cir. 1996).published (standard of review)
Other citing cases
- United States v. Curtis Teeter, No. 07-3631 (8th Cir. Apr. 6, 2009).published
- United States v. Corey E. Turner, 55 F. App'x 794 (8th Cir. 2003).unpublished
v.
William Terrell BURNEY, Defendant-Appellant
William Burney appeals the district court’s [1] 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 guilty to all three counts pursuant to a written plea agreement in exchange for the Government’s[*444] 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.
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, 112 S.Ct. 1969, 118 L.Ed.2d 569 (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 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[*445] 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, 111 S.Ct. 2240, 114 L.Ed.2d 482 (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 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, 98 S.Ct. 2846, 56 L.Ed.2d 785 (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 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.
. The Honorable Stephen H. Limbaugh, United States District Judge for the Eastern District of Missouri.
. “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).
. District court: "You understand that these are the máximums 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].