United States v. Dean A. Lambey

(Second) busi- conduct. Restatement the Potamkins assert of Torts While 766B and, indeed, “intentional NA’s justification BMW §§ ness improper” charged by plain- conduct pretext, mere unilateral action is claim of is in essence the conspiracy. tiffs antitrust sup- plaintiffs’ allegations must be better plaintiffs I pro- Because find that have not to survive a motion for ported the record proof duced sufficient such a summary judgment. summary judgment to avoid on the anti- recognize I that the Potamkins have claim, I they trust conclude that have also conclusory assertions of rested on their failed to im- demonstrate “intentional and prof- NA’s conspiracy in the face of BMW proper” part conduct on defendants’ supporting plau- evidence fer of substantial meet their burden on the contract claim. explanations for its legitimate sible and Therefore, I believe that the district court Instead, the Potamkins conduct. properly granted summary judgment on relates, further, majority gone the tortious interference claim. by I challenge explanations one one. these Similarly, the Potamkins other claims unavailing for two challenges find these along rise and fall with their antitrust First, I am convinced we need reasons. claim. For this I reason would affirm the put plausible reasons forward examine district court’s decision to dismiss the circumstantial defendant when the conspiracy, claims for common-law viola- plaintiff does not relied on evidence Act, Donnelly tion of New York’s and “un- Second, support conspiracy claim. competition” fair under state law. question mere that the Potamkins can fact sum, join I majority In with the to affirm advanced BMW the business reasons denying the district court’s decision sum- any of awarding NA for not the Potamkins mary judgment on the Potamkins’ claim itself, not, by justify does the franchises Pennsylvania under the Board of Vehicles inference that BMW NA’s conduct However, grant as I affirm the Act. would conspiracy. of a Even therefore the result summary judgment to BMW NA on the distributor, independently, gave acting if a Act 1 claim and the Potamkins’ Sherman not to reasons for its decision inaccurate closely interference claim related tortious franchise, of a whether because award of the interwoven as well as dismissal controversy or some other to avoid desire and unfair com- pendant state law antitrust reason, not violate the its actions would claims, respectfully dissent from petition conspiracy. And antitrust laws absent majority’s opinion and the balance of the conspira- us that such a Monsanto teaches judgment. highly ambigu-

cy cannot be inferred

ous evidence. view, rigorous application of the my requires

test set forth Monsanto summary judgment to grant of affirm the America, STATES UNITED Sherman Act NA on the Potamkins’ BMW Plaintiff-Appellee, applica- majority resists 1 claim. The v. Neverthe- stringent test. of such a LAMBEY, Defendant-Appellant. Dean A. less, the burden on the extent that evi- plaintiff produce section antitrust No. 90-5619. inference of concerted supporting an dence Appeals, Court of United States one, this is so be- significant action is a Fourth Circuit. forth in Monsan- set of the standard

cause Argued April 1992. to. Sept. 1992. Decided affirm the Finally, I also As Amended Oct. interfer- the tortious dismissal of court’s inter- Tortious claim. ence with contract contract, prospective or with

ference with improper

contract, requires intentional Sr., Richmond, Lewane,

Conrad Charles Va., defendant-appellant. argued, for Miller, Atty., Asst. U.S. Stephen Wiley Cullen, (Richard Richmond, Va., argued, brief), plaintiff-appellee. Atty., on U.S. ERVIN, Judge, and Chief Before PHILLIPS, WIDENER, HALL, RUSSELL, WILKINSON, SPROUSE, MURNAGHAN, HAMILTON, NIEMEYER, WILKINS, WILLIAMS, Judges. Circuit LUTTIG OPINION In February part of an investi-

NIEMEYER, Judge: Circuit gation pornographers, to uncover child Of- Lambey pled guilty A. to a two- Dean Jr., Rodrigues, Jose, ficer James of the San charging him in count information Count Department, placed California Police an an- kidnap computerized a minor in viola- nouncement with a with to bulletin announcement, board service. In the Rod- 1201(c) in II of 18 and Count U.S.C. § rigues, using alias, identified himself as using computer facility an interstate with pedophile requested a bisexual and others to publish notices and advertisements with similar interests to contact him. Lam- engage produce pornography child and to responded bey to the announcement with in sexually explicit in conduct with minors stated, his own announcement which “Your 2251(c). of 18 Two violation U.S.C. § message caught my interest. Think we accepted the weeks after the district court may something in common but need following hearing, Rule 11 guilty plea but explore more. Want to talk?? P.S. I sentencing, Lambey moved to with- before youngsters!!” began like REAL This plea, contending that his draw the protracted series of communications be- estimating in his sentence and had erred Rodrigues Lambey tween and which re- that, if he advised of the correct had been plot by Lambey vealed a and another indi- sentencing range, have demanded he would vidual, DePew, buy kidnap Daniel T. court denied the mo- a trial. child, engaging male film him in sexual Lambey to 860 months tion and sentenced activities, film, murder him on and sell prison in on the count and copies of the “snuff film” to interested count, pornography on the months buyers. In the course of their communica- concurrently. terms to run through computer tions network and by telephone person, Rodrigues later and Lambey appeal the dis- contends on and another undercover officer witnessed refusing grant trict court erred discussing Lambey plot- and DePew plea to withdraw his motion assault, ting kidnapping, sexual failing pursuant him to Fed. to advise spe- murder of a child. undertook 11(e)(2) not with- R.Crim.P. could obtaining responsibility cific a rental given draw his once was equip- kidnapping van for the and video argued court. The issues were before tapes filming, and he ment and panel this Court which affirmed the dis- Richmond, suggested that his home in Vir- Cir.1991). trict court. 949 F.2d ginia, as the location for the crime. be used granted Lam- en banc thereafter Court August Lambey telephoned Offi- rehearing, ordering that bey’s petition for he, Lambey, Rodrigues to tell him that cer panel opinion earlier be vacated and the appeared to be spotted a child who by the en case reheard Court banc. riding bicycle in an years old about When Lam- industrial area Richmond. rehearing Lambey again presents the On plan that this child be the bey indicated his and, points argued panel. victim, Lambey arrested. argue of the Court to whether invitation negotiated Retained counsel properly applied the Sen- the district According agreement. agreed to a Guidelines, alternatively tencing contends agree- discussing Lambey, while applying district court erred that the him, said that he his counsel ment supplemen- In his Sentencing Guidelines. into the sentenc- the case would fall “felt” that, properly brief contends tal 27 to 29 of the ing range defined levels Sentencing Guidelines direct applied, the Guidelines, providing for a sen- Sentencing range I be sentencing on Count 70-108 of “somewhere between tence II, on 41-51 months and Count 63-78 months,” predict” he “could not but months. re- Lambey would specific sentence copy gave Lambey a error, His counsel affirm. ceive. Finding no reversible consecutively. The court imposed could from the sentencing table sentencing, stated, “[Ujnder Guideline counsel had also on which Manual Guidelines your accurately predict what one can no written the pre- time as a kidnap) as “24-32 will be until such 1201(c)(conspiracy to sentence report has been made available range of 51-151 sentence providing for a pts,” Finally, court received the months, 28-29 on he had circled levels the Court.” that coun- range of 78-108 counsel statement providing the table too, unpred- hearing sel, Lambey of the had advised Testifying later at months. recently “as plea, ictability of his sentence Lambey’s motion evening.” that his sentence last Lambey’s counsel stated judgment on his best were based estimates hearing prior but After the Rule attor- other having consulted with after officer, probation af- sentencing, Lambey’s neys. “fig- Lambey, tentatively interviewing ter agree- signed plea the Lambey thereafter comput- applicable for up points” the ured any ment, that sentence provided pro- guideline range. The ing sentencing of the sen- discretion was “within sole Lambey that there bation officer advised has the district court tencing judge” and offi- discrepancy “a between what [the impose any authority to and “jurisdiction tentatively figured and what cer] set statutory maximum within the sentence thinking.” [Lambey] was offense, including a sen- [Lambey’s] to the Lambey promptly a letter wrote tence determined under pleas court, stating, original “The district agreement itself plea Guidelines.” advised, a time of ill and made at were provision that no sentence continued with stress,” counsel a letter to his great and any predic- had been determined his motion to withdraw requesting that a the court: binding not tion was guilty “my pleas of plea filed because his sentence is aware that The defendant pressure, great emotional made under were by the yet determined has not been previ- have time to fully I did not and ... esti- He is also aware Court. the deliberation ously give the actions sentencing range probable mate they due.” About were consideration received coun- may that he “I again, wrote the court week later he sel, probation of- government, or the by Mr. advised counseled and have been fice, promise, prediction, not a is a matter regarding Linka this counsel] [his binding government, is not my plea at to withdraw have no desire office, Realizing the Court. probation this time.” estimating sen- uncertainty in what filed a Lambey nevertheless Counsel receive, de- ultimately he tence will plea on the to withdraw motion right to knowingly fendant waives Lambey “subject grounds that exchange for the appeal the sentence fully aware great deal of stress and made concessions coun- pleas.” New implications of such agreement. amended the mo- Lambey thereafter sel for added). (Emphasis plea because tion to withdraw pursuant hearing conducted At the counsel previous had been advised Lambey testified Fed.R.Crim.P. 28 or be either offense level “would all of the “fully understood had read and would be be- of confinement period thus a and that plea agreement” terms of the months.” 78 months and tween understanding be- represented the entire testimony at which Following hearing ad- government. After him and the tween Lam- received, court denied the district of the two was nature vising plea. Lam- motion to withdraw charged, bey’s he was counts with which to 360 sentenced subsequently bey was he could him that advised I and a on Count imprisonment months I and ten on Count receive a life sentence II. 120 months on Count concurrent that the sentences II years on Count II withdrawal of a before sentencing if the defendant demonstrates a “fair and principally contends just permit reason.” The decision to his motion to withdraw his defendant to withdraw a is discretion- granted because his first should have been ary, and our review is limited ques- appli attorney’s erroneous estimate on the tion of whether the district court sentencing guideline range consti abused its cable a “fair and reason” as used in discretion. tutes 32(d) for withdrawal of the Fed.R.Crim.P. 32(d) was amended 1983 to im prop plea.* He contends that had he been pose presen- a more definite standard on erly applicable advised on the tence pleas. motions to withdraw Before gone range, he would have to trial. amendment, pleas withdrawals were government argues “ freely ‘prosecution allowed unless the sentencing” expectations “unrealized do substantially prejudiced by been reli [had] justify allowing him ” upon ance plea.’ defendant’s United guilty plea. It relies on our decision Strauss, States v. 563 F.2d DeFreitas, 865 F.2d 80 United States v. Cir.1977) (quoting Wright, 2 C. Federal (4th Cir.1989)(holding could that DeFreitas Practice and Procedure at 474-75 plea his on conduct of withdraw based (1969)); also, Savage, see United States v. (1) performance if counsel counsel’s 554, (4th Cir.1977). per 561 F.2d 556 The objective standard of reason- “fell below an approach reject missive of these cases was (2) plead- ableness” and he would changes 32(d) ed to Rule and the error). guilty counsel’s ed but for proceedings institution of more formal for government argues that counsel’s advice accepting pleas under Rule 11. See United prediction given with all the was Haley, v. 784 F.2d 1218 Cir. States potential of its variation from admonitions 1986). Advisory Notes on the 1983 sentence, giving and that errone- the actual provide, amendment to Rule 32 in connec in this circumstance does not ous estimates changes: assistance of counsel. with the constitute ineffective Although position stated in 32(d) [as Rule of the Federal Rules of Savage] may and once have Procedure, Strauss Criminal under which sound, longer this is no the case in plea, pro his been filed his motion to withdraw light may permit vides that the district court of the recent revisions of Rule 11. * 29, counsel, argument appellate Lambey, provides At for for a maximum offense level of oral used, response pursuing to the invitation to address should be rather than the offense Court's calculations, Sentencing charge. through kidnapping Guideline contend- level Lambey’s Recognizing argument ed that the estimates of first counsel would render that this were indeed correct and that the district court Lambey’s his moot motion to withdraw Sentencing applying erred in Guidelines. plea the motion is based on former because estimate, appellate erroneous counsel counsel’s began analysis The district its with argument as an alter- for advanced this Lambey pled guilty 2X1.1 § U.S.S.G. because position if is not allowed to native 1201(c), conspiracy kidnap § under 18 U.S.C. guilty plea. his withdraw guideline specific for which no though Lambey appeal the Sen did not Even guideline applied. 2X1.1 refers Section to.the calculation, might tencing we be in Guideline applicable object conspiracy, to the Sentencing Guidelines clined to consider the any adjustment (kidnapping), 2A4.1 and § plain error. issue if the district court committed any intended conduct that can be therefrom for 103, Maxton, v. 940 F.2d 105 See United States (4th Cir.), certainty. The kid- established with reasonable — U.S. -, denied, 112 S.Ct. cert. turn, guideline, guide- napping substitutes the However, 398, (1991). because 116 L.Ed.2d 347 kidnapping was to facili- line for the offense argument rejected in connection tate, (first murder). this same degree in this case 2A1.1 § Lambey’s co-conspirator, level, 43, with sentence resulting was then re- offense 324, DePew, F.2d. 328- v. 932 2X1.1(b)(2) see United States because duced three levels under (4th Cir.1991), plea agreement Lambey’s Urg- 29 accomplished. fact the murder was not in waiving right route, expressly contains clauses ing appellate coun- a different sentence, appeal not review the we will argued for sel murder, Wiggins, (§ 905 F.2d issue. See United States v. in the current version 2A2.1 2A1.5 (4th Cir.1990). Guidelines), argued 54 which he 1394 might subject that he advise placing DeFreitas provides Rule now pleaded guilty. if he Be- record, deportation full agreements plea counsel, and conduct of cause the advice plea, inquiry the voluntariness into alleged coupled other acts when even con- defendant detailed advice misfeasance, objec- fall did not below consequences and the cerning rights reasonableness, con- standard of tive determination plea and a of his just” reason for that a “fair and cluded matters, these understands estab- had not been withdrawal of of the accura- for the determination lished: great care with plea. Given cy of the only if may withdraw this revised DeFreitas pleas are taken showings: (1) that his makes pleas view he two reason to is no

Rule there an ob- “tentative,” performance “fell subject counsel’s below merely so taken of reasonableness” jective standard whenever sentence before to withdrawal in the sense (2) prejudiced preju- establish cannot probabili- a reasonable that “there [was] dice. error, that, he would counsel’s ty but for the 1983 Advisory adequacy accuracy hearing or promise or 11 of a fulfillment plea or the him there. presented to proceeding. of the information emanating from the condition withdrawing The reason he advances defendant be or is told the happens What he on whether guilty plea does not bear his the defendant hearing and induces fore the suggested no guilty. He has may in fact hearing plea at the change his not to charges, the nature confusion about analysis under Rule be relevant them, applicability or their hearing, defenses however, 11 32(d). If, at the Rule satisfy a factual circumstances to to his the defendant specifically warns the court Moreover, suggests he no finding guilt. from those different possible results on what advice him error the court’s prior event or anticipated because He by way of a sentence. receive heavy a he could advice, bears the defendant then he would simply that he believed contends to demonstrate attempting burden when that out sentence than form receive a shorter advice should event or prior that the of discussions by lined the court because just reason for a fair and of a the basis place prior to took appro his which plea. If an later withdrawal proceeding. Rule 11 proceeding 11 is to the Rule conducted priately function, meaningful on which serve a at- reveal that the undisputed facts rely, it must be system can justice criminal Lambey, discussions, by relied on torney strong presumption a recognized to raise Lambey knew estimates involved binding. final and plea is very ad- Thus the only predictions. were him that Lambey informed received sought to vice In DeFreitas specific given being plea was not he his on basis that guilty plea withdraw a rather that range, or but by sentence sentence and fact on law advised improperly by the be determined sentence not plea was therefore his counsel and acknowledged advice again court. Counsel voluntarily freely tendered. attorney’s rely estimates not to on on ele- DeFreitas allegedly to advise failed yet agreement and was the written United States in which the proof ments of by the district given advice again such vulnerability of on the had the burden hearing. Little more 11 Rule at the to court also failed witness. He Freitas, could have been said to warn 865 F.2d at 82 (holding that a potential vagaries sentencing. may about be withdrawn when the defendant performance shows that “counsel’s ‘fell be that, accept Lambey’s While we claim objective low an standard of reasonable notwithstanding the admonitions not to ex- ” error, ness’ and that but for the defen pect particular range, sentence he did not probably dant would have insisted on a expect susceptible large to be to such a trial) (quoting Lockhart, Hill v. 474 U.S. given, variation from the estimates he was 52, 57, (1985)); 106 S.Ct. Via v. cf. accept we must also his statements at the Superintendent, Powhatan Correctional hearing that he was aware that no Ctr., (4th Cir.1981) (to 643 F.2d yet sentence had been determined and that attack voluntary intelligent “the char up he could receive a sentence to life im- plea, acter” a guilty the defendant must prisonment. He testified he was aware show that the advice received was not any predictions as to a sentence were “within competence demanded court, binding on the and he acknowl- cases”). of attorneys in criminal edged promises understandings, that no significant Other than the discrepancy plea agree- other than as contained sentencing range between estimated ment, guilty plea. induced his Statements Lambey’s attorney range actually and the proceed- of fact a defendant in Rule 11 however, applied, the record reveals no evi ings may repudiated, and, ordinarily incompetence. dence of contrary, On the similarly, findings by sentencing counsel for training had attended accepting “constitute a formidable courses Guidelines and attacking plea. barrier” Black Cf. attorneys consulted with other before Allison, 63, 73-74, ledge v. 431 U.S. giving telling, his estimate. Also the attor 1621, 1628-1629, S.Ct. 52 L.Ed.2d 136 ney representing Lambey before this Court, who is different from the counsel possibility We do not rule out the that a Lambey, urges who made the estimate for likely misapprehension defendant’s of a by way argument of alternative appeal sentence, based on a clear error in the that the estimate was correct and the sen him, given advice can abe fair and tencing applied wrong guidelines guilty plea reason for withdrawal of a if it range. Finally, the same method of calcu by is not corrected the court at the Rule 11 urged ground ap lation also as a was hearing. given by Yet if the information peal Lambey’s to reverse the sentence of hearing 11 the court at the Rule corrects or DePew, co-conspirator, DePew. 932 See clarifies the earlier erroneous information Calculating F.2d at 328-30. the sentence given by attorney the defendant’s and the conspiracy kidnap to when one of the understanding defendant admits to the objects of the was murder re advice, justice system court’s the criminal quires passing through sections of several rely subsequent on the must be able to Guidelines, Sentencing 2X1.1 to from § dialogue between the court and defendant. finally to 2A4.1 to 2A1.1 and § § argued by It is that while a minor error 2X1.1(b)(2). 1. It is not supra, note See attorney estimating might an a sentence ap argue to that the section unreasonable just fail as a reason for withdrawal a murder, plicable 2A2.1 to plea, when the variation between the actual (§ in the version of the Sen 2A1.5 current sentencing range the estimate is as Guidelines), tencing simply be fol should here, significant presented we leave the as importantly, it lowed instead. More was estimating, raising a Lambey’s realm reasonable not unreasonable for counsel to competency question about the of counsel. on that basis. It is have made estimate estimation, opposed “pure guess,” complexity As to a in the precisely because argued, application it is is a form advice which Guidelines rely on objective there is an standard of reason- was warned not to Indeed, in plea agreement attorney’s below which an conduct estimates. ableness open sen- acceptance by him of an should not fall. States v. De- cluded See United that, agreement upon reaching an later. the court tence, be determined con- guilty or nolo plea of entering of a specific on a agreement required Had he to a charged offense or to a tendere agree- range, a or sentence sentence offense, attorney for or related lesser Fed.R.Crim.P. under pursued ment the follow- do government will possibili- allowed the 11(e)(1)(C)would have ing: ty-

where on which court In the circumstances clearly and reasonable were announced correctly pointed estimates could as presented only estimates rely and out to here, (B) understanding that not to ^[*] make oppose the defendant’s particular ^[*] recommendation, ^[*] sentence, such recommenda- ^[*] # or request, agree # that he proceeding binding the Rule Lambey at not be request shall or sentence, conclude receive life could court.... upon its discretion abuse court did not Advisory Notes As a fair and misapprehension rejecting illustrate, 11(e)(2) to Rule amendment guilty plea to withdraw reason requires 11(e)(1)(B) agreement type Rule United 32(d). See Fed.R.Crim.P. court warning by the whereas special McHan, 246-47 F.2d v. States not: “Be agreements do types other deny Cir.1990) (no of discretion abuse distinguish (B) is agreement type cause on guilty based motion it in that involves others from the able inform defendant attorney’s failure binding request not a recommendation against might use the government court, important upon the case). future him ain nature this is the aware that en he has agreement into Ill court. the district the judgment firm that if the defendant shall advise AFFIRMED. recommen accept the does not the court never defendant request the or dation MURNAGHAN, Judge, Circuit the right has no theless dissenting: plea. 11(e)(2) opinion majority’s re- Rule in the I concur 11(e)(1)(B), to which While Rule did in- that district court agreement holds that the as it fers, insofar describes to Lambey’s motion government denying obligation not err an cludes separately or I write plea, sentencing recommendation withdraw make a majority’s resolution request made sentencing dissent from oppose a sua issue raised 11(e)(1) Sentencing reads: Guidelines defendant. I believe Because court. sponte by the attorney for (1) The prevents us lenity the rule or the the defendant attorney for apply so the Guidelines interpreting may en- acting pro se when de- first fully executed guideline toward a view with gage in discussions

1397 gree murder specific 1038, and circumvent 1046, S.Ct. 84 (1985) L.Ed.2d 1 (quot- guideline (which ing United States v. Frady, to murder 152, 456 U.S. planned effectuated), but not I 14, 1584, 163 n. 102 14, S.Ct. 1592 n. 71 resentencing. remand for (1982)). L.Ed.2d 816 Imposition for a term imprisonment based on an erroneous computation of the Guidelines that

I. arrives range wholly and exten- Although Lambey appeal did not the dis- sively above that which is properly applica- sentence,1 trict court’s calculation of his is unquestionably ble a “miscarriage of jus- the issue had been appeal by raised on tice.” See Smith, United States v. 919 members of the bench who were concerned 123, (10th F.2d 124 Cir.1990) (“basing a the district may have erred in sentence on wrong Guideline con- using guideline degree first murder stitutes a fundamental error affecting sub- separate guideline when rights stantial within meaning of Rule murder exists. Lambey’s failure to raise 52(b)”). appeal the issue on prevent does not us from considering an issue that involves The majority states might “we be plain fundamental error. Fed.R.Crim. inclined to consider Sentencing Guide- 52(b) (plain Proc. “affecting error substan- lines issue if the district court committed 2 rights may tial although plain be noticed Maj. error.” op. at 1393 n. *. I brought court”); to the depart attention of the from the majority in believe States, Silber v. United 717, plain 370 U.S. 82 error has been committed: the ambi- 8 1287, United (1962); S.Ct. guity L.Ed.2d 798 as to whether for first Pineda-Ortuno, States v. 98, degree 952 F.2d may 105 murder applied to a conspir- — denied, cert. (5th Cir.), U.S. -, acy to murder must be resolved resort- United (1992); S.Ct. ing L.Ed.2d 587 to the rule of lenity. Belanger, States v. 936 F.2d

Cir.1991). Plain error should be found II. “in those circumstances in which a miscar riage justice would otherwise result.” lenity The rule of requires us to resolve United v. Young, States 1, 15, 105 470 U.S. ambiguities remain in criminal stat- attorney objections 1. first panel Thus, filed argument. heard oral I cannot probation regarding officer the calculation agree panel opinion in DePew should be Guidelines, of the objection which included an a hindrance to our consideration of the issue. to use of the base offense level for murder in plea agreement in which waived degree. the first represented who right appeal the sentence also should not sentencing hearing at the raised the investigate suspect cause us to hesitate to if we argument same before the district court. applied erroneously. that the Guidelines were Wiggins, panel appeal in which the dismissed an majority 2. then states that "we will not plea agree- because the defendant had entered a panel review the issue” because a of the Fourth containing express right ment waiver of his rejected Sentencing Circuit argument the same Guidelines sentence, appeal inapplicable appeal brought by Lambey’s in an co- appeal instant circumstances. The sole issue on DePew, conspirator Daniel see United States v. Wiggins application was the district court's DePew, (4th Cir.), 932 F.2d 328-30 cert. — Wiggins, denied, Guidelines. F.2d at U.S. -, 112 S.Ct. 116 L.Ed.2d Here, however, sponte we have (1991), raised sua and because entered a question proper application agreement expressly in which he waived his right appeal Maj. op. Guidelines in the context of our the sentence. en banc consid- at 1393 n. * 51, (citing Wiggins, question. United States v. eration of the related 905 F.2d withdrawal (4th Cir.1990). argument, sponte 54 Neither reason should con Prior to oral we sua invited if, fact, parties strain our en banc supplemental review of the issue in the dressing to submit briefs ad- plain the commission of error is indicated. the issue of whether the Guidelines court, Sitting properly applied. were as an en banc we are not bound prior importantly, opinion unacceptable Fourth Circuit Even more it is in DePew. States, secure, Capital See Produce Co. v. United 930 and the district court 1077, (4th addition, Cir.1991). to, respect F.2d 1079 to be ratified with a sen- criminal DePew, rely plainly did insignificantly not because tence that is and not in Lambey was sentenced over ten months before error under the Guidelines. 1398 350, States, 483 U.S. v. United McNally is construction adopting the

utes 2881, 292 2875, L.Ed.2d 97 359, S.Ct. v. Batchel 107 States lenient. United more appropriate is 2202, 2198, “plausible,” (1987), or 121, S.Ct. 114, 99 der, 442 U.S. be- language definite” of principle “clear and require (1979). 755 “[T]his 60 L.Ed.2d only to alternative. choosing the harsher not applies fore statutory construction 279, States, of 458 U.S. ambit v. United substantive Williams interpretations penal- 3094, 3088, 73 767 also L.Ed.2d but prohibitions, 290, S.Ct. 102 criminal v. United they impose.” (1982). ties Bifulco 2247, 387, 381, 100 S.Ct. States, U.S. 447 two identified has Court Supreme The Although (1980). 205 2252, 65 L.Ed.2d rule of the use underlying purposes “Guidelines,” product of called interpretative “time-honored a lenity as is Sentencing Commission United States readings of a criminal two guideline” when Unit- v. courts,” Mistretta “binding on reading pro one and plausible are statute 647, 367, 361, 109 S.Ct. States, 488 U.S. ed Liparo harsh. is more result that duces (1989) (citing 18 652, 714 102 L.Ed.2d 427, 419, 105 States, 471 U.S. v. United ta Guidelines 3553), thus the U.S.C. § (1985). 2089, 434 2084, 85 L.Ed.2d S.Ct. ...,” id. laws of effect the force “have that there both to ensure rule “serves J., (Scalia, dissent- 413, 675 109 S.Ct. at at of crimi warning of the boundaries is fair is also lenity Therefore, rule of ing). legislatures, nal conduct ambiguities resolve used appropriately liability.” Crandon courts, define criminal United See Sentencing Guidelines. in the 158, 152, States, 494 U.S. 110 United v. (3d 450, 452 Mobley, 956 F.2d v. States (cit- (1990) 132 1001, 997, 108 L.Ed.2d S.Ct. Payne, 952 v. States Cir.1992); United 427, S.Ct. at 105 U.S. at ing Liparota, 471 States Cir.1991); United (4th 827, 830 F.2d placed on is 2089). emphasis Great (9th 100, Cir. Martinez, 946 F.2d 102 v. warning ... issuing a “fair Rolande-Gabriel, of importance v. States 1991); United common language that the Cir.1991); United to the world 1231, 1237 938 F.2d understand, the law what of (D.C.Cir. 862, 866 Burke, world will F.2d 888 v. States To passed. is line if certain to do intends 1989). fair, possible far warning so make an ambi- to create Obviously, we are McBoyle v. be clear.” should the line guide- meaning of a plain to avoid guity 27, 25, 51 S.Ct. States, 283 U.S. United 387, 100 U.S. at Bifulco, 447 See line. (1931), quoted 341, L.Ed. 816 340, 75 453 at 2252; Mobley, 956 F.2d at S.Ct. — -, R.L.C., v. U.S. States United none ambiguity where find (refusing “to 1340, 559 1329, 117 L.Ed.2d -, S.Ct. 112 meaning plain to defeat exists part and J., concurring in (1992) (Scalia, statutory principle Guidelines”). As cited judgment) and concurring in the lenity is reserved construction, the rule — id, 1338 6, at 112 S.Ct. at - n. U.S. ambigu- “grievous in which for situations may It J., opinion). plurality (Souter, n. 6 language uncertainty in ity or ... proposition [crim that “the true using after remains a statute structure” adequate notice give inal statutes] statutory construc- tools other standard ...,” albeit fiction something — of a citizen States, U.S. v. United Chapman tion. — R.L.C., U.S. at “necessary fiction.” 1926, 1919, 114 -, 111 S.Ct. -, J., (Scalia, concur 1339 -, S.Ct. 112 v. Huddleston (1991) (quoting 524 L.Ed.2d judg in the concurring ring part 831, 814, 94 S.Ct. States, 415 U.S. United provid However, ment). importance (1974)). L.Ed.2d meaning of warning” as to ing “fair degree though, is what question, critical “guide mandatory criminal any particu- necessary in ambiguousness statutes, effect, is not are, in lines,” which v. Moskal ambiguity. comprise case lar decide who must to those fiction at all a 103, -, 111 S.Ct. States, U.S. United trial to stand guilty or plead whether Su- L.Ed.2d interpretations on reasonable based read- if two has stated Court preme attor- by their made Sentencing “rational,” Guidelines are statute criminal of a ings Indeed, neys. one of expectations III. Commission was that court, The district in accordance with the positive, Guidelines would “have a rational- probation presentence officer’s report, sen izing impact upon plea agreements ..in tenced as follows. The district part they because were intended to “create began analysis its general with the clear, expectation respect definite in guideline for conspiracy, U.S.S.G. the sentence that a impose court will if a 2X1.1, provides which for use of § the base place.” A, trial takes intro, U.S.S.G. Ch. Pt. offense guideline level “from the for the comment. offense, object plus any adjustments from majority acknowledged has guideline such any for intended offense “complexity” interpreting here involved in conduct that can be established with rea guide- Guidelines so as to arrive at the certainty,” sonable 2X1.1(a) U.S.S.G. § line accomplished for an degree first mur- (Nov. 1989),3 in sentencing for a conspiracy by 2A4.1(b)(5) der means U.S.S.G. in § that is not “expressly covered another process sentencing conspiracy guideline section,” offense U.S.S.G. kidnap Maj. and murder. op. at 1395-96. 2Xl.l(c).4 The district court § determined majority also states that it is “not that the “object offense” in Lambey’s case argue” guideline unreasonable to conspiracy to kidnap in violation of 18 for a applicable murder is 1201(c), U.S.C. since that is the offense § object instead. I interpretation Id. to an charged in I Count of the indictment and is of the Sentencing Guidelines calls the offense to which Lambey pled guilty.5 guideline provided substitution of the for Because guideline there is no section ex accomplished degree first murder in pressly covering a conspiracy kidnap, to murder the district court guideline turned to the through application of the kidnapping for the “object offense” kidnapping, me, guideline. flatly To that is inconsistent found at (Kidnapping, U.S.S.G. 2A4.1 Ab § requirement

with the established duction, Restraint). Unlawful Kidnapping general conspiracy guideline, U.S.S.G. was, however, only contemplated and never 2X1.1(c), which directs us to use the § actually occurred. guideline expressly conspira covers a Next, applying cy particular offense, kidnapping guide- commit a here line, murder, provides which guideline if such a for a base offense exists. level “grievous hold that there is a district court heeded the ambiguity or instruc- 2X1.1(a) uncertainty language “any in the U.S.S.G. and structure” add § — Guidelines, Chapman, adjustments guideline from such any U.S. at -, (quoting S.Ct. at 1926 intended offense conduct that can Huddle be estab- ston, 1271), certainty.” U.S. at 94 S.Ct. at lished with reasonable On that requires adoption basis, following “specific more lenient inter offense char- pretation. applied: acteristic” was stated, (1) solicitation, 3. Unless attempt, otherwise reference is made to When an or con- the version of the Guidelines that was current at the time of spiracy expressly covered another of- sentencing, incorporated section, guideline apply guideline fense amendments that became effective November section. presentence report proposed 5.The that Count 2X1.1, "Attempt, 4. U.S.S.G. entitled Solicita- II, 2251(c), violation of U.S.C. § should be (Not Conspiracy by Specific tion or Covered 3D1.2(a) (b). grouped Count I Guideline),” provides, part: Offense grouped The district court the two counts to- (a) Base Offense Level: The base offense level gether calculating sentencing range. offense, guideline object plus from the any adjustments for the propriety of that decision is not herein ad- from such dressed. intended offense conduct that can be estab- lished with reasonable certainty. (c) Cross Reference ^[******]

1400 if one conspiracy covering a expressly abducted, line or kidnapped, was If the victim 2X1.1(c) prevents mind, my § the exists. To to facilitate

unlawfully restrained a com- guideline (A) in- the for of offense: substitution of another the commission of the (B) result levels; if the murder because degree or first by pleted crease than that covering is less a expressly guideline applying guideline separate guide- the application resulting from murder. conspiracy to offense, apply the other for such line follows: is stated can be The issue offense. other for guideline such as the first 2Xl.l(c) only to be invoked § finding Lam- 2A4.1(b)(5).6 A U.S.S.G. § begin chain, i.e., requiring us to step in the to conspiracy the was made bey’s case guideline kidnapping the analysis with the commission facilitate “to kidnap was guideline specific is no there since abuse sexual offenses other of” the no other having kidnap, but conspiracy to of either Sentencing on the basis murder. lev- the offense determination impact on result kidnapping or sexual abuse instead, or, kidnap, to conspiracy a el for the 43 levels level than offense lower analysis that we entire to the apply does com- for the 2A1.1 by U.S.S.G. provided § panel in the 2X1.1? Both conduct § Therefore, degree murder. first mission sen- court district the DePew and degree covering first section guideline to considered Lambey appear tenced court, pur- district by the used murder was guide- use the instructing us to 2X1.1(c), Returning § to the 2A4.1(b)(5)(B). to suant § conspiracy if covers expressly 2X1.1, line that guideline, § general the start at exists, relevant by to be reduced then one 43 was offense level interpretation, to pursuant analysis. Under levels three to use the defendant 2X1.1(b)(2),7 the direction because once we follow § the acts completion of because “object before offense” apprehended for guideline object necessary commit conspiracy to com- believed specific guideline offense.8 provided, we has not been that offense mit expressly any guidelines ignore simply

IV. are directed even if cover happens guideline, as another to substitute sup- application of I conclude least me at 2A4.1(b)(5). It seems in § 2A4.1(b)(5)to “plain language” § posed conclude equally reasonable guideline murder degree first at the arrive calculation 2X1.1(c) applies entire § “plain circumvents both contradicts the sub- prevents 2X1.1, thus under § given instruction language” object of- guideline of a guide- stitution apply the 2X1.1(c) should that we § court the district panel stated that in DePew November effect on that took 6. An amendment by three offense level the base reduced (over after the district 20 months 2X1.1(b)(1) because "pursuant U.S.S.G. Lambey) § deleted levels sentenced successfully version attempt a new and was 2A4.1(b)(5) inserted crime was § C, U.S.S.G.App. 363. DePew, amdmt. 2A4.1(b)(7). at 329. sen- See F.2d completed." § by the dis- DePew and analysis adopted in decreased Lambey, district court tencing sentencing is not affected court in trict by by levels because three level offense therefore, here, changes. comments offense attempt, but because anwas offense provision. new pertinent to the are conspiracy. awas 2X1.1(b)(2) provides: U.S.S.G. levels under two added 8.The levels, unless conspiracy, decrease If a 1.1, intended finding that the aon 3A based completed co-conspirator aor the defendant vulnerable, resulting in particularly victim neces- conspirators believed acts the all history aWith criminal of 42. level offense an category comple- successful part for the sary their range provided I, dem- or circumstances the offense tion of life im- months is 360 table about conspirators were onstrate to 360 Lambey was sentenced prisonment. apprehension acts but complete all such on Count imprisonment (i.e., years) months beyond event some similar interruption I. their control. guideline fense if a expressly covering ply “specific offense characteristic” that conspiracy to commit that calls provid- offense is for the substitution another of guideline. fense ed.9 Substitution of the of guideline fense for object offense of 2X1.1(a) While U.S.S.G. alludes to the § murder, when the offense in reality is a application adjustments “for intend conspiracy murder, to is not necessarily ed offense conduct that can be established intended by the 2X1-1(a) instruction in to § certainty,” reasonable it is to be ex apply “adjustments” from guideline for pected that confusion would arise from the object offense, given 2X1.1(c) that § that language in the minds of defendants instructs apply us to guideline and their counsel as to whether U.S.S.G. expressly covers a conspiracy if one exists. 2A4.1(b)(5)is apply only intended to § to a The Sentencing Commission distin- kidnapping in actual fact or whether guished drastically between the offense magically broadens to merely reach con level for a conspiracy to murder and the templated but never effectuated kidnap offense level for the actual commission of ping as well. Notably, the “plain lan first degree murder. In the absence of a guage” of the guideline is written guideline for and expressly covering a conspiracy limited application in its to to a commit kidnapping, particular object offense, abduction, three or unlawful restraint that is levels differentiate the ac level offense for a tually conspired but Thus, uncompleted committed. to act logical enable the offense level for actual application of commission of U.S.S.G. 2A4.1(b)(5) to a § the underlying object offense. In the ab- conspiracy to kidnap, the insertion of suffi separate sence of a guideline conspira- for cient extending words contemplated it to cy murder, to use of degree the first mur- but not executed required: is crimes “if guideline, der with an offense level of conspiracy completed had been [the and] less three for a conspiracy, would result the victim kidnapped, [would been] an offense level of 40. contrast, abducted, or unlawfully restrained to facili Guidelines provided a base offense level for tate commission of another of a conspiracy to murder of 20 levels. _” fense Insertion of the words is based U.S.S.G. 2A2.1.10 At the § time of sentenc- instruction back in U.S.S.G. ing, the sentencing range for an offense 2Xl.l(a) apply any to “adjustments” § level of 20 was 33 to 41 imprison- months “can be established with reasonable cer- ment,11 whereas the sentencing range for tainty.” here, Yet insertion of the words an offense level of 40 was 292 to 365 to necessary apply 2A4.1(b)(5)in the in- § months imprisonment.12 Therefore, stant requires circumstances also the as- separate conspiracy guideline murder to sumption that the instruction in U.S.S.G. evinces a clear intent set a sentencing to 2X1.1(a) apply any “adjustments § from range for conspiracy to murder that guideline such for any intended offense substantially lower than sentencing (emphasis conduct” supplied), ap- means to that would if result we used support considering 2X1.1(c) "[ujnless 9.Additional for indicated,” § expressly otherwise applicable to the whole calculation under 2X1.1(c) U.S.S.G. having § can be understood as that, point § 2X1.1 is found in the after calculat- "expressly guideline indicated” for the ing object the offense level for offense of an actual, completed offense is applied not to be if conspiracy unfinished act completed as if it were a guideline for the conspiracy to commit that (i.e., calculating kidnapping 2A4.1), § offense exists. 2X1.1(a), based §on we still must return to 2X1.1(b) § for the instruction to deduct three guideline conspiracy for murder levels an uncompleted conspiracy. for Re- 2A1.5, now provides located at U.S.S.G. turning 2X1.1(c) to § instruction that a for a base offense level of 28. conspiracy expressly guide- covered another requires application line line, specific guide- of that process provided 11. The base offense level of 28 now any point calculating in the a conspiracy to murder in a results conspiracy, level offense ais reason- range of to78 97 months. interpretation able of the overall structure of Furthermore, U.S.S.G. although § 2X1.1. required, pursuant 1B1.5, are apply history U.S.S.G. 12. Both are based on the criminal cate- guideline entire object gory applied Lambey, category offense I. higher than likely much abuse, would degree murder first actually effectuated for either level the offense levels. three deducted murder, depending kidnap language and definite clear require characteristics offense specific on which permitting before guidelines in reason- with to established be were found the Commis- 2A4.1(b)(5) circumvent to as reach not certainty, it but could able a low- set far intent to unambiguous sion’s district calculated high as to conspiracy murder a for level er offense months of 360 Lambey’s sentence court. murder. an actual than for beyond the I for Count was arrival argued may be It forego- under applicable is range that mur- degree first an executed for guideline Be- of Guidelines. ing interpretation kid- to conspiracy both sentencing a in der plainly imposed was the sentence cause be- inappropriate is not murder nap and resentenc- erroneous, remand I would facilitate kidnap to to conspiracy a cause dissent. respectfully I Consequently, ing. than is worse murder of the commission conspira- aor kidnap conspiracy to a either dissenting: Judge, is suffi- argument WIDENER, That Circuit cy murder. to per- Iwhat overcome to ciently compelling the facts opinion I am Because 2X1.1(c) in direction plain to be ceive attempted entry and Lambey’s surrounding expressly covers guideline apply to a guilty plea constitute withdrawal provided, guideline a if such conspiracy withdrawal, such “fair and reason” vast keeps in mind if one particularly the dis- circumstances these under and that offense level between difference denying in its discretion court abused trict murder, less degree first accomplished of Criminal Federal under the motion uncompleted for an levels offense three 32(d), respectfully dissent. I Procedure specifical- level offense and the conspiracy, advising counsel, while Lambey’s trial to conspiracy murder. for a ly provided offer of government’s accept the him to Sentencing least, find the I very theAt range badly misstated agreement, Lambey in the to applied as Guidelines to which prison to of confinement years un- ambiguous13 and to be case present the Sen- subject under be for an guideline whether as to certain er- Lambey’s counsel tencing Guidelines.1 appli- degree murder first accomplished plea of that a him roneously informed of a existence cable, given in result agreement would guilty to murder. conspiracy covering a expressly months. and 108 of between a sentence lenity to the rule apply sum, In I would sen- fact, Lambey’s Guideline alternative. harsh less require the life, he 360 months tences was serve 360 sentenced ultimately was Y. times over three a term prison, in months mur- degree first using in error maxi- estimated counsel's longer than his reduc- the three-level level with offense der mum. harm, some conspiracy did his attor- aware Lambey first became as not harm did though probably interview presentence during a error ney’s who harm a severely it would 4, officer, December probation conspiracy to of a on the basis is sentenced plea was 1989, days after his five the basis not on murder but kidnap and sentenced. entered, before but abuse. sexual to commit substantially learning he faced Upon Lambey, based applicable level offense attorney than term longer prison sexual criminal commit on a *; case, United States op. p. maj. note many, see so, if guess, would And hazard to 13. I Cir.1991), DePew, 328-29 932 F.2d most, practice of crimi- v. engaged of those thus was estimate counsel’s his trial and that law. nal grossly understated. correctly it clear that I think Lambey's Guidelines applied the believe, led him Lambey immediately Strickland v. Washington, 466 U.S. dispatched letters to his and to the 104 S.Ct. 80 L.Ed.2d 674 asking district court that he be allowed submit that our decision in DeFrietas is guilty plea withdraw his tried flawed in applies that it an incorrect and jury. In his letter to the unduly stringent legal standard to a feder stated guilty pleas that his “ill were ad- al attempt defendant’s withdraw a vised, great and made at a time of stress.” guilty. I would overrule DeFrietas up counsel followed this letter recent, favor of our more and in my view filing formal motions to withdraw the correct, statement of the law United pleas. These fully motions explained Moore, (4th States v. 931 Cir.), F.2d 245 of his deficiencies counsel’s earlier advice — denied, -, cert. 171, U.S. 112 S.Ct. and the circumstances under which the 116 L.Ed.2d 134 pleas guilty of were entered. Prior de- majority notes, As the in we DeFrietas nying Lambey’s imposing motions and sen- stated 32(d) that under Rule a federal de- tence, the district court testimony received fendant may plea withdraw a guilty of on argument and heard his regarding coun- grounds legal of erroneous advice sel’s erroneous advice. himself only if he showings: (1) makes two that testified unequivocally that he would not his performance counsel’s “fell an below right his by jury waived to trial objective standard of reasonableness” proper he received advice regarding the (2) prejudiced that he was in prison of terms that he faced. While sense “there that a reasonable [was] testimony course, Lambey, might of of that, probability error, but for counsel’s discounted, the other facts which are pleaded would not have guilty and not, can undisputed and the district court would going have insisted on to trial.” fully was thus aware sentencing before of DeFrietas, 865 F.2d at (quoting 82 surrounding circumstances Hill v. Lambey’s Lockhart, 57, 59, guilty pleas 474 U.S. at and of his 106 at by desire to be tried S.Ct. 369, 370). a jury.2 is, set out in standard of My DeFrietas objection to the majority decision lies course, the familiar standard for determin- application in the of the govern- standard ing when attorney’s performance is so ing motions to pleas guilty. withdraw of inadequate as to constitute a violation of 32(d) Fed.R.Crim.P. allows the district the defendant’s Sixth Amendment right permit a defendant to withdraw a Lockhart, counsel. upon Hill v. guilty plea imposed before sentence is relied, DeFrietas “upon Court considered the showing the defendant of appeal prisoner of a state from the fair Following reason.” our federal deci- petition courts’ of his DeFrietas, sion denial of in United States v. writ 865 (4th Cir.1989), corpus. petitioner habeas F.2d in Hill majority sought require a from his seeking federal defendant relief state on conviction grounds guilty guilty i.e., plea plea, withdraw his before his his 32(d) under grounds right Fed.R.Crim.P. waiver of constitutional his to trial jury, pre-plea legal constitutionally was erroneous advice to show infirm in attorney “involuntary his rendered was constitutionally as a result ineffective stringent ineffective assistance under assistance of counsel because his Lockhart, 52, of Hill supplied standard v. 474 U.S. him with information about parole 366, (1985), 106 S.Ct. 88 L.Ed.2d 203 eligibility Hill, was erroneous.” 29, 1989, days 2. On December nine after the letter or was even aware of its until existence letter, receipt day of the first sentencing hearing, February court re- district of the Notwithstanding Lambey’s court, ceived from a second letter dated De- 1990. second letter 21, 1989, plea cember in which he stated that he had his motion to withdraw his "no However, desire to withdraw properly [his] at this time." was made or renewed mo- formal significant February import this letter is of no conse- tion on 1990. The of the quence my February view of this case. No one other motion can not be 12th misunder- copy than the district court received a stood. hold that analysis, I would Court at 106 S.Ct. at U.S. refusing to discretion its gov- court abused claim this constitutional held that plea. his withdraw Lambey to permit ineffective Amendment by the Sixth erned See of Strickland. one that all but opinion standard assistance I am at 369. strongly S.Ct. favor in Moore identified 474 U.S. factors established that he argument di- contrast, involved DeFrietas, for withdrawal just reason fair and criminal defendant federal appeal rect consider, one I factor to the first plea.3 As to withdraw sought who had related to closely in this case difference, Despite this 32(d). opinion that Moore, I am fourth factor “fair proffered held when conception erroneous Lambey’s grossly is erroneous withdrawal just” reason facing he was range that imprisonment estab- counsel, must a defendant advice unknowing effectively rendered rose performance his counsel’s lish that Leeke, v. involuntary. Cf. violation. Amendment Hoffman Cir.1990) (“A of a Sixth the level defen- 280, 289 F.2d federal submit, When This, error. intelligently knowingly and dant cannot plea, seeks know.”). not he does waive what a consti- plea the that grounds on the the of infirm, involuntary waiver tutionally entry lapse between Second, time grounds trial, but right to with- his motion to and his guilty of so, the to do just reason” “fair and has a the circum- negligible under draw was not and of Hill Strickland standard and confusion later Despite some stances. of Rather, Rules Federal implicated. see note Lambey’s part, on indecision and do establish can Procedure Criminal came motion his initial supra, standard rigorous less flexible more plea. More his days after only 22 pleas before of guilty for the withdrawal im- his motion Lambey made importantly, sentencing. probation his learning from upon mediately mistake; clearly, of his counsel’s officer analy- the correct forth recently set We have said to cannot be then, motion reason” “fair and identifying a sis for dilatory pur- or strategic made v. been 32(d) in United States Rule poses. that: stated In Moore we Moore, supra. variety case, of fac- consider in this typically crucial Third, Courts and most a defendant determining whether his counsel from Lambey tors received advice 32(d). right waiving Rule his burden under of met his consequences has as to de- (1) inadequate whether include factors so erroneous to trial was evidence credible offered an informed has made not have fendant could that he not knowing alone, on not plea was factor his my view decision. has (2) nearly dispos- the defendant case, very voluntary, whether of this the facts innocence, (3) legal regard In this credibly question. asserted whole of the itive delay between suggestion has majority’s been there accept whether I cannot filing of entering complex nature admittedly that the has motion, (4) Lam- whether relieve should Guidelines competent coun- provide obligation assistance had close bey’s counsel cause will estimate (5) withdrawal sel, sufficiently whether accurate him with (6) government, waiv- with the prejudice associated consequences right in our criminal it inconvenience central whether will most of the er espe- all and judicial resources. trial at and waste system, justice are Guidelines If the jury. cially trial Wright, 248; also C. see Moore, 931 F.2d expect cannot that we complex so indeed Crimi- Procedure: Practice Federal reasonably consistently provide lawyers Applying Supp.). (1982, 1992 nal 2d § charged. the offenses innocence ment against Lam- Only factor militates the second argu- no credible offered has bey; far he thus estimates, my opinion plea. submit, it is close withdrawal accurate however, should not as a matter of ordinary defendants this is far from an to bear the of that course be made burden case and is one in which the effect of the complexity. colloquy Rule 11 should not be so broad. I would treat the content and effect of the Fourth, permitted had the district court another, 11 inquiry merely though govern- Lambey plea, withdraw particularly important, factor in the with- suggestion no that it ment has made would analysis drawal set out above. prejudiced Again, in the least. have been plea on Lambey entered his November majority insists that the district and his motion to withdraw the Lambey court’s statements to at the Rule was first received the district court hearing sufficiently him warned that his any December 1989. Absent evidence counsel’s estimates were not to be relied events, ap- extraordinary intervening upon. Maj. op. at 1394-1395. While it is pears government’s ability pros- general true that the district court in a im- ecute would have been manner informed that “no one ... allowing paired any way by withdrawal sentence, accurately predict” his [could] the execution only a matter of weeks after simply inquire any speci- did not plea agreement. ficity Lambey’s into whether counsel had Finally, allowing the withdrawal any made estimates. It is also incorrect to resulted inordinate inconve- suggest the estimates of judicial court or a nience to the waste were announced as estimates Certainly the withdrawal of the resources. rely. A on which could not review in a of the Rule 11 plea results waste transcript attending plea of the the entire plea accepted. hearing at which the was 87-101, guilty, of A. indicates that the dis- However, importance given the judge trict did not mention the estimates of involved, expended in rights the resources Lambey’s attorney, neither did he state relatively proceeding hardly can brief any such estimate could not relied be weigh against prop- said to an otherwise be testified, upon.4 Lambey later and in his sum, opinion er I am of withdrawal. by docu- testimony is corroborated the clearly standards so that the Moore were mentary sentencing given by by him table in this case that the refusal to satisfied II, attorney, plaintiff’s ex. A. his allow withdrawal constituted an abuse of attorney erroneously his had informed him discretion. that the maximum sentence of 360 months him, apply to life did not to and conse- ordinary In the case in which a defendant impression the quently Lambey was under plea guilty on attempts to withdraw a of the hearing at the Rule 11 court’s that he mistaken as to the grounds the was regarding that sentence did not admonition consequences plea legal the or of the of an attor- plea, apply to him. See A. When rights by the the fact that the waived incorrect, here, to ney’s so as as accepted only properly- after a advice was was hearing may entire understand- conducted Rule 11 well fore- distort the defendant’s itself, grossly provided by attorney plea agreement were un- which him his 4. signed, only warnings similar in their paragraph contains states that esti- derstated. This by judge generality given to those the district government, binding the mates are not provides, in the bench. That document court, from office, probation and makes no or the part: relevant attempt suggest be estimates cannot to that such sentence has The defendant is aware that his deciding upon by wheth- relied defendant yet been determined the Court. He is not also aware that plead guilty. right trial and er to waive his to probable estimate of the language boilerplate sim- The insertion of such range may that he have received searching ply proper is not a substitute counsel, proba- government, or the from upon judge, inquiry when called the district office, prediction, promise, and tion is a not here, laboring the defendant is as to whether government, proba- binding on the is not misunderstanding regarding grave under a office, or the Court. potential punishment faces. that he put language obviously was insufficient to This specific estimates on notice that the uphold to nor Rule is Rule neither 11 collo- significance ing of pleading blind requirement ironclad is hold that I would quy, erroneous admittedly grossly face of plea. withdrawing thereby barred result That is the attorney. anof advice amend- the 1983 true that of course It is here. obtained made 32(d) have to Fed.R.Crim.P. ments judg- vacate Accordingly, would diffi- pleas more guilty withdrawal remand the district ment has wisely here- However, this cult. offenses a new entry of that cre- holdings sweeping avoided tofore charged. regarding rules unnecessarily inflexible ate Circuit state to authorized I am which under circumstances opinion. in this joins Judge SPROUSE to desire Our withdrawn. may be proceedings criminal finality to impart dissenting: HALL, Judge, Circuit K.K. right a defendant’s outweigh should De- Daniel Lambey conspired Dean when that jury, tried, especially be sexually then boy and kidnap a pew such circumstances right waived was process of him in the murder abuse here. present as those he was For movie. making a “snuff” except his Even prison. turn no one thirty years sentenced abhorrent, officer probation unless the crimes attorney, awful of such talk admittedly gave attorney was what occurred extent counted. but magni- defendant, of talk- great instead advice that, If a Lambey incorrect talk. victim, caught obviously his intended kidnapping tude, ing mistake about to mur- Immediately him, attempts officer. to murder conspires probation by the or life- mistake, Lambey permanent him, inflicts being advised der upon range act injuries, This threatening plea withdrawn. to have asked strikingly lower nevertheless corroboration documentary Lam- applied to beyond 360-life than established of his mistake Moreover, conspiracy conviction.1 bey’s there faith. good his- doubt do Lambey could else nothing counsel acknowledges that majority plea. his seek withdraw except training courses the time attended Lambey had such opinion is majority con- of the effect sentencing guidelines the length to the as giving the attorneys from before advice that other with sulted that un- probable sentence. “[a]nd sentence maximum to the of the as estimate can accu- one on the sentencing, no based view, was estimate this guideline my der In guidelines will sentence your applicable the what rately predict interpretation has trial report by the used presentence been as have time should such until 94, court,” is A. twisted Instead, the trial made available court. been impose a rule, impenetrable so as an guidelines se per impose a contorted by a justified can excess far in which sentence behind shield guidelines. reading admitted great and even fair hide, and avoid as that attorney such anof mistake dissent Murnaghan’s Judge III of Part here. computing occurred done what describes view, cor- my Lambey’s sentence. Guidelines, it mild- put fol- as been should have computation rect To con- sentencing. revolutionized ly, have lows: does however, majority as them, strue most guideline offense (1) Determine pro- from case, is in this (con- of conviction offense applicable I do of fairness. element ceeding the lB1.2(a). kidnap). U.S.S.G. § spiracy construed, and to be meant they are think adjustments and (based same on the gives translates attempt to murder conspiracy and 1. A Lambey) to a applied to history score 20, criminal increase 6-level plus a offense base injury." bodily months. life-threatening range of 78-97 or "permanent 1989). (Nov. This 2A2.1(a), (b)(3)(C) § U.S.S.G. least, guideline expressly very no covers option Inasmuch as have the of withdraw- kidnap, 2X1.1 ing plea. directs qualification, With this I con- § offense, provision object for the Judge use cur with Widener’s analysis of the 1.e., kidnapping. plea withdrawal issue.

(2) 2A4.1, kidnapping guideline, § prescribes a base level of PHILLIPS, Judge, Circuit dissenting: 2Xl.l(b)(2) requires a decrease of three § agree I points with the essential made in levels, to 21. Judge dissenting opinion, Widener’s (3) characteris- “special Under offense with the result that he would reach: a tics,” 2A4.1(b)(5) “If states: the victim § remand to allow withdrawal of the the commis- kidnapped ... to facilitate repleading. I separately write (A) by 4 sion of another offense: increase only disagreement because view 25]; [yielding an offense level of levels issue and its effect on (B) guideline applying if the result of the withdrawal issue. resulting application less than that offense, guideline apply for such other off, agree First assessing guideline for such other offense.” whether the district court in refusing erred to allow withdrawal because of (4) 2X1.1(c) provides Section advice, proper ques counsel’s mistaken expressly covered “[w]hen section, regarding counsel’s guideline apply mistake and its by another offense (and provided effect is whether it guideline section.” There did a “fair and does) reason”, 32(d), guideline per exist an offense for ‘con- Fed.R.Crim.P. 2A2.1, (§ withdrawal, spiracy allowing to murder’ now found at rather than whether 2A1.5), yielded one that have constitutionally would it amounted to ineffective § offense 20. Inasmuch as this level assistance of counsel under the much ster of 25 under Lockhart, is less than level ner test of Hill v. 474 U.S. 2A4.1(b)(5)(A),it would not be used.2 106 S.Ct. 88 L.Ed.2d 203 See Sweeney, 878 F.2d United States v. (5) adjustment the same Applying Cir.1989) (2d (Rule 32(d) standard rather (2 increase under district court level appropriate than constitutional standard 3A1.1, Victim’) gives ‘Vulnerable a total assessing rulings in direct fed withdrawal offense level of 27. With a criminal histo- Bennett, appeals); eral United States v. I, ry score of should (N.D.Ind.1989), F.Supp. aff'd 70-87 months. been (less (7th Cir.1990) stringent F.2d 152 guidelines ambiguous If the are so 32(d) controls). Judge Widen standard As judges appeals of a court of several notes, er our decision United States v. ranges differ reach sentence that twen- (4th Cir.1989) DeFreitas, is to F.2d 80 more, certainly ty years and an accused contrary, applying constitutional guess held to at his risk should be appeal. in a direct federal He standard I contemplating plea. would vacate when wrong forthrightly says DeFreitas resentencing,3 the sentence and remand for I point and that we should overrule it. foreclosing possibility of a de- without agree. However, in the event the Su- parture. persuasive guidelines agree I then with his demon- preme should find the Court 32(d)’s should, that under Rule more flexi- properly applied, at stration were suggesting deducting pursuant months is nec- By 3. I am not that 70-87 2. three levels essarily range, (as that it should 2X1.1(b)(2), the correct majority acknowledges of § by the district the end result if the route chosen must) only conspiracy to murder course it navigate through guidelines is fol- court to however, 2X1.1(b), was involved. The use of § plea stipulation estab- lowed. Inasmuch as the ("At- heading ignores both the kidnapping to facili- was intended lishes Solicitation, (Not tempt, Conspiracy Covered victim, U.S.S.G. sexual abuse of the tate the Guideline)") by Specific well as the Offense as yield appreciably appear § 2A3.1 (c). express in subsection cross-reference 1989). (Nov. higher offense level than 2A2.1 standard, reason” and “fair ble JOHNSON, James in not H. a/k/a its discretion James abused Ferebee; agree Commonwealth I do not But H. allowing withdrawal. Plaintiffs-Appellees, Virginia, sentence fact on the this turns one, defense hence proper imposed was v. my In real mistake. advice a counsel’s Leasing SKATEWAY; Lois HUGO’S lawyer’s advice enough that view, it is Firm, Incorporated, Defendants- position that wide so far was Appellants. took government —without which position, to whether regard JOHNSON, H. James a/k/a James H. legally was upon, sentencing court acted Plaintiff-Appellant, Ferebee; wrong. In- position counsel’s correct defendant, in which appeal on this deed withdrawal only the raised appellant, Plaintiff, Virginia, Commonwealth sponte not sua should issue, I think v. wheth- issue addressed raised have Leasing SKATEWAY; Lois legally cor- HUGO’S was imposed the sentence er Firm, Incorporated, Defendants- later left for have been should That rect. Appellees. its appeal from on an resolution—either ordered, byor were if remand reimposition 90-2499, 90-2509. Nos. occurred, the if, as has proceeding a 2255 Appeals, Court States United affirmed. were withdrawal allow refusal Fourth Circuit. however, find the raised, issue theWith April 1992. Argued Mur- Judges Hall and dissenting views illegal was an sentence naghan Sept. Decided —that point— At least persuasive. one— 27, 1992. As Amended Oct. demonstrating me—of enough for which de- between point confusion counsel counsel fense facing it for understandable sentencing, no the eve time on first defen- right, this to know way being just reason” “fair and had a dant plea and take allowed it. given been should He chances. of discre- an abuse find sum, I would motion defendant’s denial in the withdraw, remand and would leave issue addressing the without repleading imposed. sentence legality opinion. in this joins Judge ERVIN

Chief Notes Committee guilty and would have pleaded not have 32, 18 Fed.R.Crim.P. Amendment to trial.” going insisted on U.S.C.App., p. 800 Lockhart, v. (quoting Hill 865 F.2d just” rea Accordingly, a “fair 52, 57, 106 S.Ct. 474 U.S. one that withdrawing a son for (1985)). L.Ed.2d either the fairness challenges essentially Lambey raises present case In the the defen wherein proceeding in the Rule occurred objection what tendered, accepted, the no dant

Notes

Notes Advisory Committee tered.” 11, 18 Fed.R.Crim.P. 1979 Amendment sentence argues that his Lambey also p. 745 U.S.C.App. Rule because vacated should be failed, pursuant agreement no hearing the there Since him 11(e)(2), inform recommend case to Fed.R.Crim.P. not with- oppos- he could pled he or to refrain that once sentence specific Lambey, is based argument His plea. ing draw the recommendation a sentence 11(e)(2) ap- Rule there applicable premise 11(e)(2) was the incorrect Rule the district these circumstances. plies requirement no he pled guilty Lambey that once inform part: 11(e)(2) in relevant reads plea. not withdraw could type agreement [plea] If the therefore, stated, we af- reasons For the (e)(1)(B), the in subdivision specified

Case Details

Case Name: United States v. Dean A. Lambey

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 27, 1992

Citation: 974 F.2d 1389

Docket Number: 90-5619

Court Abbreviation: 4th Cir.