It is common for criminal prosecutions to be resolved by the defendant’s plea of guilty, but not all guilty pleas are alike. Usually in federal court, defendants enter the type of plea that leaves the court free to set whatever sentence it believes is proper, under the law. It is also possible, however, for the plea agreement to specify a particular sentence that both the defendant and the government agree is appropriate. See fed. R. Crim. P. 11(c)(1)(C). That is the kind of plea agreement we have before us in Paul Cieslowski’s appeal. He pleaded guilty to engaging in sexually explicit conduct with a minor for the purpose of producing a visual depiction of the conduct and agreed in his plea agreement to a sentence of 210 months’ imprisonment. The district court accepted this plea and sentenced Cieslowski to the agreed term.
Cieslowski later had second thoughts and decided to appeal. He now claims that his plea agreement was the result of ineffective assistance of counsel, because the agreed-upon term of imprisonment resulted from his lawyer’s mistaken calculation under the federal Sentencing Guidelines. After the Supreme Court decided
Blakely v. Washington,
In October 2000, detectives of the Cook County Sheriffs Police Child Exploitation Unit began investigating a person who, through the use of a screen name, participated in various Internet chat rooms devoted to child pornography. The same individual also chatted with, and sent nude pictures of himself to, an undercover police officer posing online as a fourteen-year-old girl. A few months later the detectives identified the screen name as belonging to Paul Cieslowski. When detectives spoke with Cieslowski, he admitted using the screen name in the chat rooms and gave written consent for a search of his home laptop computer. Forensic examiners found in excess of 8,000 image files on the laptop, most of which depicted minors engaged in sexually explicit conduct.
Cieslowski was arrested by state and federal agents and indicted by a federal grand jury on ten counts: two counts of engaging in sexually explicit conduct with a minor for the purpose of producing visual depictions of the conduct, in violation of 18 U.S.C.. § 2251(a); one count of possessing material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and seven counts of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). He was indicted separately in the Circuit Court of DuPage County, Illinois, on charges of predatory criminal sexual assault and possession of child pornography stemming from the same facts and circumstances alleged in the federal indictment.
On December 6, 2001, Cieslowski pleaded guilty in the federal case to one count of engaging in sexually explicit conduct with a minor for the purpose of producing visual depictions, in exchange for the government’s dismissal of the other nine counts in the indictment. In the plea agreement, which was governed in part by what was then Fed. R. Crim. P. 11(e)(1)(C), Cieslowski stipulated to the conduct alleged in the dismissed counts and agreed that this conduct would play a role in determining his sentence. (In 2002, Rule 11(e)(1)(C) was renumbered as Rule 11(c)(1)(C). Because nothing of substance was changed, we use the current numbering in this opinion.)
Using the 2000 Sentencing Guidelines manual, the parties calculated. Cieslowski’s offense level to be 35, resulting in a guideline sentencing range of 168-210 months. The agreement stated that it was to be governed by what is now Rule 11(c)(1)(C). It therefore stated that “the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment of 210 months in the custody of the Bureau of Prisons. Other than the agreed term of incarceration, the parties have agreed that the Court remains free to impose the sentence it deems appropriate.” Consistent with Rule 11(c)(1)(C), the agreement also •provided that “[i]f the Court accepts and imposes the agreed term of incarceration set forth, the defendant may not withdraw this plea as a matter of right under [Rule 11]. If, however, the Court refuses to impose the agreed term of incarceration set forth herein, thereby rejecting the Plea Agreement, or otherwise refuses to accept the defendant’s plea of guilty, this Agreement shall become null and void and neither party will be bound thereto.”
Shortly thereafter, Heather Winslow, who had been serving as Cieslowski’s counsel, withdrew from the case and current counsel was appointed. On June 18, 2002, Cieslowski filed a motion to withdraw his guilty plea, arguing that it was involuntary because it had been induced by ineffective assistance of counsel. He contended that Winslow’s failure to file two suppression motions prior to pursuing the plea agreement was an error that left him
Prior to sentencing, both parties acknowledged that they had failed to catch an amendment to the Sentencing Guidelines that affected the Guidelines range for Cieslowski’s offenses. Under Amendment 615 to the Guidelines, which took effect on November 1, 2001 (a month prior to Cieslowski’s guilty plea), the offense and conduct to which Cieslowski stipulated would have resulted in an offense level 33, for which the highest sentence would have been 168 months- — 42 months less than the agreed upon sentence. Cieslowski again moved to withdraw his plea.
On July 9, 2003, the court denied his motion and sentenced him to 210 months. It also imposed a three-year term of supervised release and ordered him to participate in mental health aftercare, register as a sex offender, and avoid unsupervised contact with minor children. Cieslowski appealed, claiming that his agreement to plead guilty was involuntary, and thus that he should be relieved from all aspects of that plea (including, it should be noted, his waiver of the right to appeal or to attack the judgment collaterally).
II
Fed. R. CRiM. P. 11(b) requires the court to ensure, before accepting a guilty plea, that the defendant entered into it voluntarily. With this goal in mind, it requires the court to address the defendant personally to determine that the plea did not result from force, threats or promises other than those memorialized in the plea agreement.
Id.
Once the court accepts a guilty plea, a defendant does not have an absolute right to withdraw it. To the contrary, the defendant must present a “fair and just reason” for doing so. Fed. R. Crim. P. 11(d)(2)(B). We have commented that when “a defendant wishes to withdraw his plea after he states at a Rule 11 hearing that it was given freely and knowingly, he faces an uphill battle in persuading the judge that his purported reason is fair and just.”
United States v. Pike,
Cieslowski argues that in agreeing to plead guilty, he relied on the advice of his former counsel. He contends that she committed a series of errors, the net result of which was to destroy the voluntariness of his plea. These alleged errors included reliance on the wrong version of the Sentencing Guidelines to calculate the sentence to which he ultimately agreed, the failure to file two suppression motions, and the failure to advise the district court of an oral agreement concerning a concurrent sentence in the state court proceeding.
We review an ineffective assistance of counsel claim under the principles set forth in
Strickland v. Washington,
It is undisputed that both Win-slow and the government prosecutors failed to take Amendment 615 into account when they computed Cieslowski’s sentence. The question is whether Winslow’s error amounts to constitutionally deficient performance. We have held that “[a] gross mis-characterization of the sentencing consequences of a plea may provide a strong indication of deficient performance, but it is not proof of a deficiency. A defendant can prove that his attorney’s performance was deficient if he shows that his attorney did not make a good-faith effort to discover the facts relevant to his sentencing, to analyze those facts in terms of the applicable legal principles and to discuss that analysis with him.”
United States v. Barnes,
Moreover, even if the mistaken calculation amounted to deficient performance because of the 42-month difference in the high end of the Guideline range, see
Glover v. United States,
In
Hill,
the claimed error was erroneous advice regarding the defendant’s eligibility for parole under the agreed sentence. Because the defendant “did not allege ... that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial,” the Supreme Court found that the prejudice requirement had not been met.
Id.
at 60,
In short, Cieslowski has not shown that a reasonable probability exists that he would have insisted on going to trial but for the mistaken calculation! If convicted on all 10 counts after a trial, Cieslowski faced a possible maximum sentence of 160 years, whereas by pleading guilty to one count under § 2251(a), he avoided prosecution on the other charges and limited his sentence to a statutory maximum of 20 years. And the sentence Winslow negotiated in exchange for his guilty plea was less than the maximum sentence for that one count. On this record, we cannot conclude that even if Winslow’s error amounted to deficient performance, Cieslowski would have insisted on going to trial instead of entering into the plea agreement.
We can be more brief with Cieslowski’s claim that Winslow’s failure to file two suppression motions amounted to ineffective assistance. He argues that Win-slow should have moved to suppress the images found on his computer because his consent to the search was not voluntary. He also argues that Winslow should have moved to suppress his statements made at the time of his arrest because they were obtained in violation of his Miranda rights.
Generally when an attorney articulates a strategic reason for a decision, the court defers to that choice. See
Strickland,
Cieslowski argues that Winslow’s decision was objectively unreasonable, because such a motion would clearly have succeeded. His reason for such confidence is because the state prosecutor acquiesced in a similar motion filed in the state court proceeding. We do not know, of course, why the state prosecutor chose to concede a
Miranda
violation, but that concession is certainly not binding on the federal court. In fact,' it seems unlikely to us that the court would have granted any such motions. Winslow, whose testimony the district court found more credible than that of Cieslowski,' explained that she did not file the motion to suppress the evidence found on his laptop because Cieslowski had given
The final basis for Cieslowki’s ineffective assistance claim is that Winslow failed to advise the district court about a sentencing agreement reached in the state court proceeding. Under this alleged agreement, Cieslowski was to serve a concurrent sentence for the state charges. Although he now asserts that this agreement induced his plea in federal court, he explicitly responded “no” at his Rule 11 colloquy when asked by the court whether any promises had been made outside of the plea agreement. Nor is there any dispute that he did in fact receive this concurrent sentence. We cannot see how the gap in the district court’s knowledge prejudiced him in any way.
An even more fundamental flaw in Cieslowski’s argument is the lack of evidence that this was a promise made by the federal prosecutors in exchange for his plea in the federal case. The written plea agreement contains an integration clause and explicitly disclaims the effectiveness of any prior oral representation. Plea agreements are governed under the principles of contract law, see
United States v. Ingram,
Cieslowski has presented no evidence that the federal prosecutors ever made this contingent concurrent sentencing agreement part of his federal plea agreement. Winslow testified that no one from the U.S. Attorney’s office ever made any promises regarding the state court proceedings. In fact, the federal prosecutor rejected her suggestions for coordinating the two cases. The affidavit submitted by Cieslowski’s counsel in the state case says nothing about making the resolution of the federal case contingent on the state case. As the alleged concurrent sentencing agreement was not part of the federal plea agreement, Rule 11 does not require that it had to be revealed to the district court. Cieslowski has not shown that his plea was rendered involuntarily through ineffective assistance of counsel. Therefore, we find no error in the denial of his motion to withdraw the plea on this ground.
Ill
Cieslowski also argues that we should vacate his guilty plea and sentence for a variety of other reasons: mutual mistake; breach of the agreement by the government; unauthorized use of the district court of its power to depart upward; and an unauthorized additional condition of supervised release. To the extent that these arguments, if successful, would result in setting aside the plea agreement as a whole, we entertain them despite the fact that the agreement itself contains a waiver
In order to put these arguments in context, we review briefly two recent decisions that have addressed efforts to set aside guilty pleas on the ground of mutual mistake. In
United States v. Bownes,
The mutual mistake to which Cieslowski points is, not surprisingly, the erroneous assumption by both Winslow and the Assistant U.S. Attorney that the pre-Amendment 615 version of the Guidelines was still in force. We noted in
Barnes
that, “[a]t least in theory, ambiguity in an essential term or a mutual mistake about the meaning of such a term can invalidate” the plea agreement.
There is no dispute that the agreement provided that the government could not request an upward departure from the agreed sentence. Cieslowski argues nonetheless ‘that the government breached the agreement when it advised the court after the Guideline error was discovered that it could lawfully impose the 210-month sentence under the amended Guidelines if it upwardly departed from the 168-month level to reach the agreed
The reason why this was not a true upward departure goes back to the nature of plea agreements under Rule 11(c)(1)(C). In return for this type of guilty plea, the government may agree to dismiss other charges, make sentencing recommendations, and "agree that a specific sentence or sentencing range is th~ appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply." fed. R. Crim. P. 11(c)(1)(G). The rule further provides that "such a recommendation or request binds the court once the court accepts the plea agreement." Id. If the district court does not accept the sentencing agreement in its entirety, the defendant must be allowed to withdraw her guilty plea; the court does not have the power to retain the plea and discard the agreed-upon sentence.
We have held that Rule 11(c)(1)(C) "[p]lea agreements can retain their authority to bind the government, the defendant and the district court even when they provide for sentences that depart from the prescriptions of the guidelines." Barnes,
Cieslowski's sentence of 210 months easily satisfies that standard. The maximum sentence for a conviction under 18 U.S.C. § 2251(a) is 20 years, 18 U.S.C. § 2251(d), or 30 months more than Cieslowski received. Moreover, if there was any doubt whether a court may impose a sentence outside of the Sentencing Guideline range, that doubt has been erased by the Supreme Court's recent decision in United States v. Booker, - U.S.-,
Nothing in Booker undermines the validity of sentences imposed under
Last, we reject Cieslowski’s claim that the district court exceeded its power when it added a condition to his supervised release to the effect that he was not to have unsupervised contact with minor children. This argument sounds as if Cieslowski is attempting to enforce part of the plea agreement; if so, he is precluded from raising it by his waiver of 'appeal rights. If he means that this is another reason to set the agreement aside in its entirety, we reject the point. The plea agreement plainly contemplated that the district court would have the power to impose this type of condition, and Cieslowski acknowledged during the Rule 11 colloquy that the court had this power and that he could not withdraw from the agreement if he disagreed with a condition of supervised release. Nothing here would justify relieving him of the consequences of the agreement as a whole.
IV
Cieslowski would also like to raise a Sixth Amendment challenge to various aspects of his sentence, but once again, since we have concluded that he cannot escape the plea agreement, he cannot do so. The plea agreement contained a waiver of Cieslowski’s right to appeal “any sentence within the maximum provided in the statute of conviction.” We strictly enforce such waivers. See
Barnes,
For these reasons, Cieslowski’s conviction and sentence are Affirmed.
