U.S. v. Rhodes, No. 89-3241

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY and SETH, Circuit Judges, and PARKER; PARKER
Citation913 F.2d 839
Decision Date06 September 1990
Docket NumberNo. 89-3241
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert L. RHODES, Defendant-Appellant.

Page 839

913 F.2d 839
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert L. RHODES, Defendant-Appellant.
No. 89-3241.
United States Court of Appeals,
Tenth Circuit.
Sept. 6, 1990.

Page 841

Robin D. Fowler, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with her on the briefs), Wichita, Kan., for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

Before McKAY and SETH, Circuit Judges, and PARKER, District Judge. *

PARKER, District Judge.

Defendant Robert L. Rhodes entered a plea of guilty to one count of possession of more than five grams of a substance containing cocaine base, in violation of 21 U.S.C. Sec. 844(a). 1 Subsequently, at his sentencing hearing, Rhodes made an oral motion to withdraw his plea pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure. The court denied the motion and sentenced Rhodes to imprisonment for a term of 210 months followed by a three year term of supervised release. 2

Rhodes appeals the district court's denial of his motion to withdraw the plea of guilty. He contends that (1) the district court erred by finding that the plea of guilty was voluntarily entered; (2) defense counsel's failure to determine Rhodes' complete criminal history constitutes ineffective assistance of counsel; and (3) the district court abused its discretion by denying Rhodes' motion to withdraw his plea of guilty. We affirm.

I. Background

On May 18, 1989, the district court held a hearing on defendant's Petition to Enter Plea of Guilty. (Vol. II at 5). The Petition to Enter Plea of Guilty, which was signed by Rhodes in open court, provides in part:

I told my lawyer all the facts and circumstances known to me about the charges against me in the indictment. I believe that my lawyer is fully informed on all such matters.

* * * * * *

I possessed in excess of Five (5) grams of a substance which contained cocaine base.

* * * * * *

My lawyer informed me that the plea of "Guilty" could subject me to a maximum punishment which, as provided by law, is 20 years imprisonment and a fine of $250,000 for the offense(s) charged in Count(s) I of the indictment.

(Vol. I, Doc. 23, Para. 4, 5, 10).

At the plea hearing, Rhodes stated that he understood the terms of the plea agreement, including the government's agreement not to charge a more serious offense in the case, such as distribution, which

Page 842

would carry a ten year minimum sentence. (Vol. II at 5-6). Rhodes further indicated that no promises or assurances had been made in order to induce him to offer a plea of guilty and that no one had "predicted or promised to [him] what the sentence would be in this case." Id. at 6, 14. The court reviewed the facts of the offense with the defendant, as required by Rule 11. This review concluded in Rhodes' admission, under oath, that he had possessed in excess of five grams of a substance containing cocaine base as set forth in the plea agreement. Id. at 14-15.

Before accepting Rhodes' plea of guilty, the court advised Rhodes that if the plea of guilty were accepted, he would not be able to withdraw his plea. Id. at 8. The court fully advised Rhodes of the implications of sentencing under the Sentencing Guidelines. Rhodes was informed that the court would not be able to determine the guidelines sentence range until after completion of the presentence report; and that the court had the "authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines." Id. at 13. The court further apprised Rhodes of the twenty year maximum prison sentence which could be imposed and the five year minimum prison sentence mandated by statute. Id. at 16. In colloquy with the court, Rhodes confirmed that he had discussed the Sentencing Guidelines with his defense counsel and was advised about their applicability. Id. at 13.

On August 28, 1989, the day scheduled for sentencing, Rhodes orally moved to withdraw the plea of guilty on the ground that defense counsel incorrectly represented to Rhodes that he would receive a sentence of not more than five years, the statutory minimum. Id. at 21. Defense counsel advised the court that Rhodes had not fully discussed his prior criminal record with counsel. Rhodes told his attorney about only one of his six convictions. Id. at 21, 26. Defense counsel stated that if Rhodes had divulged the full extent of his prior criminal convictions counsel "substantially would have changed what I would have done had I known about that from a lot of perspectives and [had I] discussed that with my client." Id.

Rhodes testified that he sought to withdraw his plea because he was now aware that he would receive a much harsher sentence than what he had anticipated at the time of entering his plea. Id. at 32. Rhodes stated that at the time he spoke with defense counsel regarding his prior convictions, he had been drinking heavily 3 and had forgotten about his prior convictions. Id. at 26. Rhodes also testified, however, that he informed the probation officer of several of his prior convictions, which he failed to mention to his attorney, in connection with bail review. Id. at 28-30. David Hill, the United States Probation Officer responsible for preparing the presentence report, confirmed that Rhodes had informed him of several prior convictions. Id. at 41.

The district court denied the motion to withdraw the plea finding that "the lapse of memory, whether intentional or otherwise on behalf of the defendant ... who does not fully disclose to his attorney or others before the plea is entered is not a basis on which a motion to withdraw a plea of guilty should be granted." Id. at 49.

II. Voluntary Plea

Rhodes maintains that his plea of guilty was involuntary. Specifically, Rhodes contends that his attorney's miscalculation of the likely length of his sentence under the guidelines, admittedly because Rhodes failed to inform his counsel of his own prior criminal convictions, along with the court's failure to apprise him of the anticipated guideline range, renders the plea involuntary. 4

Page 843

Whether a plea is voluntary is a question of federal law subject to de novo review. Laycock v. State of N.M., 880 F.2d 1184, 1186 (10th Cir.1989) (citing Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983)).

"[A] defendant's guilty plea must be both knowing and voluntary in order to be valid, and ... the defendant's decision to plead must constitute a 'deliberate, intelligent choice between available alternatives.' " United States v. Fernandez, 877 F.2d 1138, 1142 (2d Cir.1989) (quoting Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d Cir.), cert. denied 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980)). A plea may be involuntary when an attorney "materially misinforms the defendant of the consequences of the plea or the court's probable disposition." Laycock, 880 F.2d at 1186. Although an attorney's unfair representation of probable leniency may be found coercive, an erroneous estimate of sentence does not render the plea involuntary. Id.

The undisputed facts surrounding the plea agreement, the procedures the district court followed at the plea hearing, and Rhodes' own assertions, belie Rhodes' contention that his plea was involuntary. The plea agreement contained Rhodes' statement admitting his commission of the charged...

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115 practice notes
  • United States v. Dominguez, Nos. 19-8021 & 19-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2021
    ...intelligent choice between available alternatives’ in order to be knowingly and intelligently made." (quoting United States v. Rhodes , 913 F.2d 839, 843 (10th Cir. 1990) )). More particularly, a defendant knowingly and intelligently pleads guilty if he understands his plea's "direct conseq......
  • United States v. Dominguez, No. 19-8021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2021
    ...intelligent choice between available alternatives' in order to be knowingly and intelligently made." (quoting United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990))). More particularly, a defendant knowingly and intelligently pleads guilty if he understands his plea's "direct conseque......
  • Wells Fargo Bank, Nat'l Ass'n v. Se. N.M. Affordable Hous. Corp., No. CIV 11–0182 JB/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 27, 2012
    ...Stewart v. United States, 242 F.2d at 51. “Waivers of sovereign immunity under section 2410(a) must be read narrowly.” Schmidt v. King, 913 F.2d at 839. Wells [877 F.Supp.2d 1160]Fargo cannot rely upon 28 U.S.C. § 2410 to challenge the provisions in Article IV.7V. THE DECLARATORY JUDGMENT A......
  • U.S. v. Rowzer, No. 98-40074-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 16, 1999
    ...F.3d 413, 416 (10th Cir.1996). Withdrawal of Guilty Plea "There is no absolute right to withdraw a guilty plea." United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990). See United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir.1990) ("[A] defendant does not have any absolute right to......
  • Request a trial to view additional results
115 cases
  • United States v. Dominguez, Nos. 19-8021 & 19-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2021
    ...intelligent choice between available alternatives’ in order to be knowingly and intelligently made." (quoting United States v. Rhodes , 913 F.2d 839, 843 (10th Cir. 1990) )). More particularly, a defendant knowingly and intelligently pleads guilty if he understands his plea's "direct conseq......
  • United States v. Dominguez, No. 19-8021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 2, 2021
    ...intelligent choice between available alternatives' in order to be knowingly and intelligently made." (quoting United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990))). More particularly, a defendant knowingly and intelligently pleads guilty if he understands his plea's "direct conseque......
  • Wells Fargo Bank, Nat'l Ass'n v. Se. N.M. Affordable Hous. Corp., No. CIV 11–0182 JB/CG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 27, 2012
    ...Stewart v. United States, 242 F.2d at 51. “Waivers of sovereign immunity under section 2410(a) must be read narrowly.” Schmidt v. King, 913 F.2d at 839. Wells [877 F.Supp.2d 1160]Fargo cannot rely upon 28 U.S.C. § 2410 to challenge the provisions in Article IV.7V. THE DECLARATORY JUDGMENT A......
  • U.S. v. Rowzer, No. 98-40074-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • November 16, 1999
    ...F.3d 413, 416 (10th Cir.1996). Withdrawal of Guilty Plea "There is no absolute right to withdraw a guilty plea." United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990). See United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir.1990) ("[A] defendant does not have any absolute right to......
  • Request a trial to view additional results

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