U.S. v. Lambey

• Decision Date: 27 October 1992
• Docket Number: No. 90-5619,90-5619
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean A. LAMBEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1389

974 F.2d 1389

UNITED STATES of America, Plaintiff-Appellee, v. Dean A. LAMBEY, Defendant-Appellant.

No. 90-5619.

United States Court of Appeals, Fourth Circuit.

Argued April 7, 1992.

Decided Sept. 2, 1992.

As Amended Oct. 27, 1992.

Conrad Charles Lewane, Sr., Richmond, Va., argued, for defendant-appellant.

Stephen Wiley Miller, Asst. U.S. Atty., Richmond, Va., argued, (Richard Cullen, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG and WILLIAMS, Circuit Judges.

OPINION

NIEMEYER, Circuit Judge:

Dean A. Lambey pled guilty to a two-count information charging him in Count I with conspiracy to kidnap a minor in violation of 18 U.S.C. § 1201(c) and in Count II with using an interstate computer facility to publish notices and advertisements to produce child pornography and to engage in sexually explicit conduct with minors in violation of 18 U.S.C. § 2251(c). Two weeks after the district court accepted the guilty plea following a Rule 11 hearing, but before sentencing, Lambey moved to withdraw the plea, contending that his attorney had erred in estimating his sentence and that, if had he been advised of the correct sentencing range, he would have demanded a trial. The district court denied the motion and sentenced Lambey to 360 months in prison on the conspiracy count and 120 months on the pornography count, the terms to run concurrently.

Lambey contends on appeal that the district court erred in refusing to grant his motion to withdraw his guilty plea and in failing to advise him pursuant to Fed.R.Crim.P. 11(e)(2) that he could not withdraw his plea once it was given to the court. The issues were argued before a panel of this Court which affirmed the district court. 949 F.2d 133 (4th Cir.1991). The Court en banc thereafter granted Lambey's petition for rehearing, ordering that the earlier panel opinion be vacated and the case reheard by the Court en banc.

On rehearing Lambey again presents the points argued to the panel and, on the invitation of the Court to argue whether the district court properly applied the Sentencing Guidelines, contends alternatively that the district court erred in applying the Sentencing Guidelines. In his supplemental brief Lambey contends that, properly applied, the Sentencing Guidelines direct that the sentencing range on Count I be 63-78 months and on Count II, 41-51 months.

Finding no reversible error, we affirm.

I

In February 1989, as part of an investigation to uncover child pornographers, Officer James Rodrigues, Jr., of the San Jose, California Police Department, placed an announcement with a computerized bulletin board service. In the announcement, Rodrigues, using an alias, identified himself as a bisexual pedophile and requested others with similar interests to contact him. Lambey responded to the announcement with his own announcement which stated, "Your message caught my interest. Think we may have something in common but need to explore more. Want to talk?? P.S. I like REAL youngsters!!" This began a protracted series of communications between Rodrigues and Lambey which revealed a plot by Lambey and another individual, Daniel T. DePew, to buy or kidnap a male child, film him engaging in sexual activities, murder him on film, and sell copies of the "snuff film" to interested buyers. In the course of their communications through the computer network and later by telephone and in person, Rodrigues and another undercover officer witnessed Lambey and DePew discussing and plotting the kidnapping, sexual assault, and murder of a child. Lambey undertook specific responsibility for obtaining a rental van for the kidnapping and video equipment and tapes for the filming, and he suggested that his home in Richmond, Virginia, be used as the location for the crime. In August 1989, Lambey telephoned Officer Rodrigues to tell him that he, Lambey, had spotted a child who appeared to be about 13 years old riding his bicycle in an industrial area of Richmond. When Lambey indicated his plan that this child be the victim, Lambey was arrested.

Retained counsel negotiated and Lambey agreed to a plea agreement. According to Lambey, while discussing the plea agreement with him, his counsel said that he "felt" the case would fall into the sentencing range defined by levels 27 to 29 of the Sentencing Guidelines, providing for a sentence of "somewhere between 70-108 months," but that he "could not predict" the specific sentence Lambey would receive. His counsel gave Lambey a copy of the sentencing table from the Sentencing Guidelines Manual on which counsel had written the sentencing range for a § 1201(c) (conspiracy to kidnap) as "24-32 pts," providing for a range of 51-151 months, and he had circled levels 28-29 on the table providing for a range of 78-108 months. Testifying later at the hearing on Lambey's motion to withdraw his plea, Lambey's counsel stated that his sentence estimates were based on his best judgment after having consulted with other attorneys.

Lambey thereafter signed the plea agreement, which provided that any sentence was "within the sole discretion of the sentencing judge" and the district court has "jurisdiction and authority to impose any sentence within the statutory maximum set for [Lambey's] offense, including a sentence determined under the Sentencing Guidelines." The plea agreement itself continued with a provision that no sentence had been determined and that any prediction was not binding on the court:

The defendant is aware that his sentence has not yet been determined by the Court. He is also aware that any estimate of the probable sentencing range that he may have received from counsel, the government, or the probation office, is a prediction, not a promise, and is not binding on the government, the probation office, or the Court. Realizing the uncertainty in estimating what sentence he will ultimately receive, the defendant knowingly waives his right to appeal the sentence in exchange for the concessions made by the government in this agreement.

(Emphasis added).

At the hearing conducted pursuant to Fed.R.Crim.P. 11, Lambey testified that he had read and "fully understood all of the terms of the plea agreement" and that it represented the entire understanding between him and the government. After advising Lambey of the nature of the two counts with which he was charged, the district court advised him that he could receive a life sentence on Count I and ten years on Count II and that the sentences could be imposed consecutively. The court also stated, "[U]nder Guideline sentencing, no one can accurately predict what your sentence will be until such time as a presentence report has been made available to the Court." Finally, the court received the statement of Lambey's counsel that counsel, too, had advised Lambey of the unpredictability of his sentence "as recently as last evening."

After the Rule 11 hearing but prior to sentencing, Lambey's probation officer, after interviewing Lambey, tentatively "figured up the points" applicable for computing a sentencing guideline range. The probation officer advised Lambey that there was "a discrepancy between what [the officer] had tentatively figured and what [Lambey] was thinking."

Lambey promptly wrote a letter to the district court, stating, "The original pleas were ill advised, and made at a time of great stress," and a letter to his counsel requesting that a motion to withdraw his plea be filed because "my pleas of guilty were made under great emotional pressure, and ... I did not fully have time to previously give the actions the deliberation and consideration they were due." About a week later he wrote the court again, "I have been counseled and advised by Mr. Linka [his counsel] regarding this matter and have no desire to withdraw my plea at this time."

Counsel for Lambey nevertheless filed a motion to withdraw the plea on the grounds that Lambey was "subject to great deal of stress and not fully aware of the implications of such pleas." New counsel for Lambey thereafter amended the motion to withdraw the plea because Lambey had been advised by previous counsel that the offense level "would be either 28 or 29, thus a period of confinement would be between 78 months and 108 months."

Following a hearing at which testimony was received, the district court denied Lambey's motion to withdraw his plea. Lambey was subsequently sentenced to 360 months imprisonment on Count I and a concurrent 120 months on Count II.

II

Lambey contends principally that his motion to withdraw his guilty plea should have been granted because his first attorney's erroneous estimate on the applicable sentencing guideline range constitutes a "fair and just reason" as used in Fed.R.Crim.P. 32(d) for withdrawal of the plea. ^* He contends that had he been properly advised on the applicable sentencing range, he would have gone to trial.

The government argues that Lambey's "unrealized expectations at sentencing" do not justify allowing him to withdraw his guilty plea. It relies on our decision in United States v. DeFreitas, 865 F.2d 80 (4th Cir.1989) (holding that DeFreitas could withdraw his plea based on conduct of counsel only if (1) counsel's performance "fell below an objective standard of reasonableness" and (2) he would not have pleaded guilty but for counsel's error). The government argues that counsel's advice was just a prediction given with all the admonitions of its potential variation from the actual sentence, and that giving erroneous estimates in this circumstance does not constitute ineffective assistance of counsel.

Rule 32(d) of the Federal Rules of Criminal Procedure, under which Lambey filed his motion to withdraw his plea, provides that the district court may permit the withdrawal of a plea before sentencing if the defendant demonstrates a "fair and just reason." The...