RON KERRY MOORE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5176 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The order and judgment of the court of appeals (Pet. App. 1-5) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 12, 1990. The petition for a writ of certiorari was filed on July 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was entitled to withdraw his guilty plea on the ground that it was entered in violation of the Due Process Clause, Fed. R. Crim. P. 11, or his plea agreement. STATEMENT Petitioner was convicted, upon a guilty plea in the United States District Court for the District of Kansas, of assault with a dangerous weapon, in violation of 18 U.S.C. 113(c). He was sentenced to five years' imprisonment and two years' supervised release. The court of appeals affirmed the conviction, upholding the district court's decision to deny petitioner's motion to withdraw his guilty plea. 1. The indictment charged petitioner with assault with a dangerous weapon, the offense to which he pleaded guilty, and with possession of a weapon while an inmate of a prison. Petitioner entered a plea agreement under which he agreed to plead guilty to the assault count; in return, the government agreed to recommend a sentence at the lower end of the range prescribed by the Sentencing Guidelines for that offense and to dismiss the weapon possession count at sentencing. Petition to Enter Plea of Guilty and Order Entering Plea, No. 88-30003-01 (May 26, 1988) (hereinafter Plea Petition), at 1, 3. The Plea Petition, which petitioner executed, recited that the maximum term of imprisonment for the assault offense was five years; that sentencing was a matter within the sole control of the judge; and that although petitioner hoped to receive leniency, he was prepared to accept any punishment permitted by law that the court saw fit to impose. Id. at 2-3. During the plea proceeding, the district court told petitioner that his sentence would be governed by the Sentencing Guidelines and that the court could not determine the sentence until after a presentence report had been prepared. Plea Tr. 4. Petitioner's attorney advised the court that he and petitioner had discussed "the problems with the (Sentencing Guidelines) as far as determining exactly what kind of sentence would be determined for him." Id. at 5. The attorney continued (ibid.): (Petitioner) does understand we are under a new system, and that I have not been able to tell him exactly myself what I believe that sentence would be. But we do know the maximum, the worst that could happen would be five years. In response to an inquiry from the court, petitioner acknowledged that he understood that the court would not be "able to figure the guideline sentence until after the pre-sentence report has been completed." Id. at 5. In describing the plea agreement to the court, petitioner's counsel stated that the government had agreed "to recommend the lower end of the guidelines as they are later determined by the probation office, whatever those may be." Plea Tr. 6; see id. at 10. The court cautioned petitioner that if it did not accept the government's recommendation, petitioner would not be permitted to withdraw his plea of guilty. Petitioner twice stated that he understood. Id. at 6-7. Petitioner admitted that he had committed the assault charged in the indictment, an attack on a fellow inmate with a 31-inch piece of steel. Petitioner stated, "He (the victim) was assaulted. I assaulted him. No way I am withdrawing from that. * * * The assault occurred, it took place." Plea Tr. 9. After completing the proceedings required by Fed. R. Crim. P. 11, the court accepted petitioner's guilty plea. Plea Tr. 12-13. /1/ When the probation office prepared the presentence report, it determined -- based upon the violent nature of the offense and petitioner's prior convictions for offenses involving violence -- that petitioner was a career offender. See Sentencing Guidelines Section 4B1.1. As a result, petitioner was automatically placed in criminal history category VI. Because his offense level was 21, the resulting sentencing range for the assault count was 77 to 96 months' imprisonment. Because this range exceeded the five-year maximum prescribed by the assault statute, 18 U.S.C. 113(c), the Guidelines required the court to impose the maximum statutory term. /2/ At his sentencing hearing, petitioner moved to withdraw his plea. He argued that because the sentence mandated by the Guidelines was higher than the lower end of the applicable sentencing range for offense level 21, the government could not recommend the lower end of the range and the plea agreement had therefore not been fulfilled. Sent. Tr. 4-5. Counsel indicated that he had been unaware of petitioner's criminal record and that, as a "ballpark figure," he had suggested to petitioner that the probable sentence would be "more in the range of four years." Id. at 6. The court denied the motion, stating (id. at 14): * * * I am not going to allow you to withdraw your plea of guilty because I think you were amply informed that you could not withdraw the plea of guilty particularly since the court is in effect adopting the plea agreement the way it was stated to me, and I am proceeding in a manner that is actually beneficial to you over and above the plea agreement. The court sentenced petitioner to five years' imprisonment and dismissed the second count of the indictment. Id. at 20, 23. 2. The court of appeals affirmed in an unpublished order. Pet. App. 1-5. Noting that the substance of petitioner's claim was that "he expected he would actually receive a lower sentence" than the statutory maximum, the court stated that "(a) defendant is not entitled to withdraw his guilty plea just because his aspirations lead him to believe he will receive a sentence different than that actually imposed." Id. at 4. The record, the court continued, "clearly indicates (petitioner) was fully and fairly advised of the prospect he could receive a sentence of five years coupled with supervised release. He manifested his understanding of that possibility but chose to persist in his guilty plea. The fact that he harbored hopes of more lenient treatment does not negate the voluntary and unconditional nature of that plea." Id. at 4-5. Similarly, the court held that the district court complied with the requirements of Fed. R. Crim. P. 11 and that there had been no breach of the plea agreement. Id. at 5. ARGUMENT Petitioner contends that his guilty plea was received in violation of Rule 11, the Due Process Clause, and the plea agreement. Pet. 5-12. The record establishes, however, that the district court complied with the relevant requirements of Rule 11; that petitioner entered his guilty plea with a full understanding of the risks he was assuming; and that petitioner received all the consideration due him under the plea agreement. Under Rule 11(c)(1), a district court is required to inform the defendant of "the maximum possible penalty provided by law" and "the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances." /3/ The district court complied with those requirements in this case. Rule 11 does not obligate a court to advise a defendant of the sentences the Sentencing Guidelines may produce when applied to the facts of a particular case -- or, as petitioner puts it, to describe the "outer boundaries of the court's discretion and non-discretion under the circumstances of the case" (Pet. 10). To the contrary, as the Advisory Committee note accompanying the 1989 amendment to Rule 11 made clear: Since it will be impracticable, if not impossible, to know which guidelines will be relevant prior to the formulation of a presentence report and resolution of disputed facts, the amendment does not require the court to specify which guidelines will be important or which grounds for a departure might prove to be significant. The court of appeals and the district court were also correct in their conclusion that petitioner's plea was voluntary and knowing, within the meaning of the Due Process Clause. In his petition to enter a guilty plea, petitioner acknowledged that he was exposed to a maximum prison term of five years, and the court explicitly advised petitioner of the five-year maximum term during the plea hearing. Petitioner was also advised, and acknowledged, that the application of the Guidelines to his case could not be determined until after presentence report had been prepared (Plea Tr. 5): (PETITIONER'S ATTORNEY): Judge, my client and I have been talking at some length about the problems with the new guidelines as far as determining exactly what kind of sentence would be determined for him. He does understand we are under a new system, and that I have not been able to tell him exactly myself what I believe the sentence would be. But we do know the maximum, the worst that could happen would be five years. THE COURT: All right. Well, in other words, we are simply telling you that the United States Sentencing Commission has issued new guidelines, that you and your attorney have discussed this some but the court is not able to figure the guideline sentence until after the pre-sentence report has been completed and you and the government have had an opportunity to challenge the facts as reported by the probation department. Both sides have that right. (PETITIONER): I understand. Petitioner received no assurance that the court would have discretion to enter a sentence below the statutory maximum. Moreover, as this exchange makes clear, petitioner entered his guilty plea knowing that his sentence under the Guidelines was uncertain and that he was assuming the risk of a sentence up to the statutory maximum. Indeed, petitioner was also told that if the court chose not to accept the government's recommendation he would not be allowed to withdraw his plea. Plea Tr. 6-7. The record makes it abundantly clear that petitioner was aware that the plea agreement did not provide him with any assurance that he could or would be sentenced to less than five years' imprisonment. /4/ Both courts below found, with ample support from the record, that petitioner entered his guilty plea after being fully informed of its consequences. Pet. App. 4-5; Sent. Tr. 14. The correctness of that finding does not warrant further review. See Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987); Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 317-318 n.5 (1985). As the court of appeals held, the fact that petitioner may have anticipated receiving a sentence below the statutory maximum did not vitiate the knowing, voluntary, and intelligent nature of his plea. United States v. Turner, 881 F.2d 684, 686-687 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989); United States v. Fernandez, 877 F.2d 1138, 1142-1143 (2d Cir. 1989). Defendants may not plead guilty "in order to test whether they will get an acceptably lenient sentence," United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989), and then withdrew their pleas if the sentence is not to their liking. Nor may they rely on erroneous predictions by their attorneys to justify that course. Ibid. Finally, imposition of the five-year term required by the Sentencing Guidelines did not violate the plea agreement or render it unenforceable. The relevant terms of that agreement were, in their entirety, as follows (Plea Petition, at 3 (emphasis in original)): IN EXCHANGE FOR (PETITIONER'S) PLEA TO COUNT I OF THE INDICTMENT, THE GOVERNMENT AGREES TO RECOMMEND THE LOWER END OF THE GUIDELINES AND THEY WILL DISMISS THE REMAINING COUNT OF THE INDICTMENT AT THE TIME OF SENTENCING. The plea agreement did not include a promise, express or implicit, that the "lower end of the Guidelines" would fall below the maximum term of imprisonment authorized by the statute. Rather, as defense counsel explained during the plea proceeding, the government promised "to recommend the lower end of the guidelines as they are later determined by the probation office, whatever those may be." Plea Tr. 6 (emphasis added); see id. at 10; Sent. Tr. 4. /5/ In this case, the "lower end of the Guidelines" turned out to be the statutory maximum; in imposing that sentence, the district court was, as it said, "in effect adopting the plea agreement the way it was stated to (the court)." Sent. Tr. 14. Indeed, as the court noted, petitioner derived substantial benefit from the plea agreement even though he received a five-year term of imprisonment. In return for his plea, he obtained the dismissal of the weapon possession count. Had he gone to trial and been convicted on both counts, his sentencing range would have been at least 77 to 96 months. /6/ Under these circumstances, the district court did not abuse its discretion under Fed. R. Crim. P. 32(d) in denying petitioner's motion to withdraw his plea. See United States v. Sweeney, 878 F.2d at 70 ("A district judge has broad discretion under Rule 32(d) in deciding whether to allow withdrawal of a plea"); United States v. Savage, 891 F.2d 145, 151 (7th Cir. 1989); United States v. Pitino, 887 F.2d 42, 46 (4th Cir. 1989). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney OCTOBER 1990 /1/ After the plea was accepted, petitioner argued to the court that he should be transferred from the federal penitentiary in Leavenworth to a Wisconsin state facility. In that context, petitioner and his counsel indicated a willingness to waive the statutory requirement that they receive the presentence report 10 days before senencing, apparently as a means of expediting such a transfer. Plea Tr. 13-18. In response to that suggestion, the trial court asked the probation officer to meet with petitioner that day and to advise the court if the report was ready early. The court continued (id. at 18): (P)erhaps you can -- they can get started on that, and you can waive all the notices required under the new law about notice about the pre-sentence report, so forth. Because unless something comes up unusual in the pre-sentence report, the court generally goes along with the recommendation of the government in something like that. I think that's -- I am not declaring that forever, but that is generally what happens. I generally go along with the recommendation of the government in regard to sentencing, unless there is something very unusual. Contrary to petitioner's suggestion (Pet. 3-4, 8), this statement did not provide petitioner with any guarantee that he would be eligible for a sentence including less than five years' imprisonment. /2/ Sentencing Guidelines Section 5G1.1(a) provides that "(w)here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence." /3/ Fed. R. Crim. P. 11(c)(1) provides: (c) Advice to Defendant. Before accepting a plea of guilty * * *, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense. /4/ At sentencing, petitioner's attorney advised the court that he had given petitioner "an estimate, ballpark figure * * * in the range of four years." Sent. Tr. 6. That estimate, however, was evidently based on petitioner's failure to advise his attorney of the extent of his criminal record; counsel stated that he "was not aware of the lengthy prior criminal record of my client that he would be found to have been a habitual criminal. That jacks him way up over the guidelines, all these things." Ibid. /5/ Because the prosecution did not promise that petitioner's sentence would fall below the statutory maximum, there is no conflict between the decision in this case and Santobello v. New York, 404 U.S. 257, 262 (1971). See Pet. 7. In Santobello, the Court held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262. /6/ The maximum sentence for the weapon possession charge was five years. See 18 U.S.C. 1791(b)(3) and (d)(1)(B). Sentencing Guidelines Section 5G1.2(d) would have required the sentences on the two counts in the indictment to run consecutively to the extent necessary to produce a combined sentence within the applicable range.