PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. JONATHAN KEARN, Defendant - Appellee. No. 23-3029

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. Nos. 5:19-CV-04032-DDC & 5:13-CR-40057-DDC-1)

________________ _________________ James A. Brown, Assistant United States A ttorney (Kate E. Brub acher, United States Attorney, with him on the briefs), United States Attorney ’s Office, District of Kansas, Topeka, Kansas, for Plaintiff-Appellant. Kayla Gassmann, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the brief), Kansas Fede ral Public Defender’s Office, Kansas City, Kansas, for Defendant-Appellee.

________________ _________________ Before TYMKOVICH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ TYMKOVICH , Circuit Judge. Jonathan Kearn was indicted on three ch ild pornography offens es involving his children. Even though Mr. Kearn faced an upper exposure of 30 years’ imprisonment on the charges, the government offered a plea agreement for a 10-year sentence in FILED United States Court of Appeals Tenth Circuit 

### January 23, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 12 exchange for Mr. Kearn’s guilty plea to one of the counts. After a six-minute conversation with his trial c ounsel discussing the plea agr eement he chose to reject the offer and proceed to trial. He was c onvicted on all three coun ts and sentenced to 24 years in prison. He exhauste d his appeals in federal court. Mr. Kearn then filed a pro se 28 U. S.C. § 2255 motion, arguing his trial counsel was constitutionally ineffective during the plea-bargaining phase. The district court appointed counsel and, after an evidentiary hearing, granted the motion, finding (1) his trial counsel provided defici ent advice about the proposed plea deal, and (2) there was a reasonable probability th at, but for counsel’s errors, he would have pleaded guilty. The court ordere d the government to reoffer the plea, concluding no reasonable pe rson would have rejected the offer knowing and understanding its contour s and the sizeable reduction in sentence exposure. It then accepted Mr. Kearn’s guilty plea , vacated the prior judgment, and resentenced him to 10 years’ imprisonment. We affirm. The district court correctly concluded that trial counsel’s brief discussion with Mr. Kearn was inadequate to explain the complexities of the plea and that counsel had supplied inacc urate and misleading informa tion in that conversation. Given the substantial difference in sent encing exposure—20 years—and the evidence suggesting Mr. Kearn was amenable to pl eading guilty had he been adequately advised, the court reasonably found that Mr. Kearn would ha ve accepted a properly presented plea deal and avoided trial. Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 23 I. Background A grand jury indicted Mr. Kearn in 2013 on three charges: (1) perm itting his minor children to engage in sexually exp licit conduct for the purpose of producing a visual depiction of such cond uct, 18 U.S.C. § 2251(b); (2) distributing a visual depiction of a minor engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(2); and (3) possessing a visual depiction of a mi nor engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B). Mr. Kearn was convicted by a jury on all three charges and sentenced to 24 years in prison. In 2019, Mr. Kearn filed a motion for relief under 28 U.S.C. § 2255 asking the court to vacate his sentence based on ineffective assistance of trial counsel. The district court held an evidentiary hearing on Apr il 19, 2021, to resolve the factual issue of whether Mr. Kearn’s counsel provided ineffective a ssistance during the plea-bargaining phase. Mr. Kearn, Mr. Kearn’s trial counsel, and Branden Bell, a criminal defense attorney based in Kansas City, testified at the hearing. Mr. Kearn testified to his unders tanding of the plea agreement at the time it was offered, and that he would have accepted it if he had been properly advised by counsel. Counsel testified to his discussion with Mr. Kearn about the plea. And Mr. Bell testified to his practice of explaining plea agreements to defendants who are relu ctant to plead guilty. These facts are taken from the district court’s order and evidentiary hearing transcripts. Prior to trial, the government offered Mr. Kearn a plea deal under Federal Rule of Criminal Procedure 11(c)(1)(C), al lowing Mr. Kearn to plead guilty only to the possession offense in exch ange for a sentence of 10 y ears. Mr. Kearn’s trial Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 34 counsel discussed the govern ment’s plea offer with Mr. Kearn once for six minutes. Although counsel recognized the plea o ffer was “huge” for Mr. Kearn given his sentencing exposure at trial (30 years), c ounsel did not advise Mr. Kearn on whether he should accept the offer, fa iled to weigh the pros and cons of the offer, and neglected to explain the mechanics of a Rule 11(c)(1)(C) plea. Co unsel also told Mr. Kearn he would need to supply the factual basis, or facts underlying the offense, for the guilty plea in court. But counsel did not discuss the possibility that the factual basis could instead be provi ded by the government or the presentence report. Mr. Kearn’s counsel also testified that at the end of the six-minute meeting, Mr. Kearn told him “he would not plead guilty” because “he didn’t do it—didn’t do what he was charged with.” App. Vol. II, 454. Counsel noted in response it was “too bad there’s not a no contest plea.” Id. Later, Mr. Kearn’s counsel called the prosecutor in the case and le ft a voicemail declining the government’s plea offer. He explained Mr. Kearn said, “he didn’ t do it,” so “that’s a problem.” Id. at 455. But counsel testified he thought th ere was still a chance Mr. Kearn would plead guilty until moments before trial. Mr. Bell testified about the problems wi th trial counsel’s short conversation with Mr. Kearn. He explained it is co mmon for defendants charged with sensitive crimes to profess their innocence. But th at he tries to lowe r the “psychological hurdle,” especially when th e plea deal offers a substa ntially lower sentence, by spending about an hour to an hour and a half discussing a plea agreement. If the defendant remains reluctant, Mr. Bell testified he would c ontinue those conversations Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 45 over multiple hours and multiple meetings. Mr . Bell said he has never discussed a plea agreement in only six minutes. Mr. Kearn testified at the evidentiary hearing that it would have been difficult to admit the facts of his offense in open c ourt before his friends and family because the crimes involved his own dau ghters. But he also testifie d that if he had known he did not have to provide the factual basis himself he woul d have been willing to plead guilty.
II. Discussion
A. Legal Standards A prisoner in federal custody may move to vacate his sentence if such “sentence was imposed in violation of the Constitution or laws of th e United States[.]” 28 U.S.C. § 2255(a). The Sixth Amendmen t “provides defendants a right to the effective assistance of counsel, and this right ‘extends to the plea-bargaining process.’” United States v.
Watson , 766 F.3d 1219, 1225 ( 10th Cir. 2014) (quoting Lafler v. Cooper , 566 U.S. 156, 162 (2012)). In evaluating challenges to guilty pleas based on ineffective assistance of counsel, the Supreme Court has “held ‘the two-part Strickland v. Washington test applies.’” Lafler , 566 U.S. at 162–63 (quoting Hill v. Lockhart , 474 U.S. 52, 58 (1985)). Under Strickland , the defendant must first show “counsel’s performance was deficient,” and second, “t he defendant must show that the deficient performance prejudiced the defense.” 466 U.S. at 687. To show deficiency , “a defendant must show that counsel’s representation ‘fell below an objective standard of Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 56 reasonableness.’” Lee v. United States , 582 U.S. 357, 363 (2017) (quoting Strickland, 466 U.S. at 688)). And to show prejudi ce, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. To show prejudice in “the context of pleas, a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler , 566 U.S. at 163 (2012). The prejud ice inquiry is largely objective. United
States v. Dominguez , 998 F.3d 1094, 1111 (10th Cir. 2021). A defendant’s “mere allegation” that he would ha ve pleaded guilty “but for hi s counsel’s errors, although necessary, is ultimately insuffici ent to entitle him to relief.” Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001). We instead look for contemporaneous evidence, i.e., “the factual circumstances surrounding the plea,” to determine if there is a reasonable probability the defendant w ould have accepted the plea deal. Heard v. Addison , 728 F.3d 1170, 1183 (10th Cir. 2013) (internal quotation marks omitted). We review the district court’s legal rulings on a § 2255 motion de novo and its findings of fact for clear error. United States v. Viera , 674 F.3d 1214, 1217 (10th Cir. 2012). And “[i]n evaluating an ineffective assistance of counsel claim, we accept the district court’s underlying factual finding s unless clearly erroneous, and we review de novo whether counsel’s performance was legally deficient and whether any deficiencies prejudiced the defendant.” Watson , 766 F.3d at 1226 (interna l quotation marks omitted). Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 67 B. Deficient Performance The first Strickland prong requires that the defendant show deficient advice in the plea-bargaining process. The government co ntends the district court erred in finding deficient performance because M r. Kearn never intended to plea d guilty to the charges no matter how he was counseled prior to trial. To show counsel’s assistance was constituti onally deficient, the errors must be so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Hanson v. Sherrod , 797 F.3d 810, 826 ( 10th Cir. 2015) (quoting Strickland , 466 U.S. at 687). “A court must indu lge a strong presump tion that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland , 466 U.S. at 669. “A fair assessment of atto rney performance requires that every effort be made to eliminate the distorting effects of hi ndsight, to reconstruct the circumstances of counsel’s challenged conduct, an d to evaluate the conduct fro m counsel’s perspective at the time.” Id. at 689. Whether counsel is deficient “is necessarily linked to the practice and expectations of the legal community: Th e proper measure of attorney performance remains simply reasonableness unde r prevailing professional norms.” Hinton v. Alabama , 571 U.S. 263, 273 (2014) (inter nal quotation marks omitted). The district court found Mr. Kearn’s counse l deficient on severa l fronts. First, he failed to explain accurately the be nefits and burdens imposed by a Rule 11(c)(1)(C) plea. Under Rule 11(c), when a court accepts the pl ea, it is bound to sentence the defendant to the agreed-upon sentence, and if it rejects the plea, the defendant may withdraw the plea. See Fed. R. Crim. P. 11(c)(1)(C) (“[A] Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 78 recommendation or request binds the court on ce the court accepts the plea agreement”); see also Fed. R. Crim. P. 11(c)(5)(B) (“If the cour t rejects a plea agreement . . . the court must . . . give the defendant an op portunity to withdraw the plea.”). 1 As Mr. Bell testified at the evidentiary hearing, these types of pleas are popular with defendants because they provide certainty—defenda nts either receive the senten ce agreed to or they can withdraw their plea.

1 In relevant part, Rule 11(c) provides: (3) Judicial Considerati on of a Plea Agreement. (A) To the extent the plea agreemen t is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreemen t, reject it, or defer a decision until the court has reviewed the presentence report. (B) To the extent the plea agreemen t is of the type specified in Rule 11(c)(1)(B), the court must advi se the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. *** (5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specifi ed in Rule 11(c)(1 )(A) or (C), the court must do the following on the reco rd and in open court (or, for good cause, in camera): (A) inform the parties that the court reject s the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less fa vorably toward the defendant than the plea agreement contemplated. Fed. R. Crim. P. 11(c). Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 89 After the evidentiary heari ng, the district court dete rmined counsel failed to explain that (1) if the cour t accepted Mr. Kearn’s plea, he would be sentenced to 10 years, and (2) if the court rejected it, Mr. Kearn would have the opportunity to withdraw the plea. In fact, the district court found counsel failed to explain anything at all about Rule 11. In particular, there was no discussion of, or pr oposed solution to, Mr. Kearn’s dilemma—he did not want to pe rsonally supply the factual basis for the plea. Instead, as the district cour t found, counsel overstated the burdens by incorrectly informing Mr. Kearn he would have to personally supply the factual basis for the guilty plea in court. It is true th at under Rule 11, “[b]efore entering judgment on a guilty plea, the court must de termine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). And to “determine whether a factual basis exists for the defendant’s plea, the district court must compare the conduct admitted or conceded . . . with the elem ents of the charged offense to ensure the admissions are factually sufficient to cons titute the charged crime.” United States v. Carillo , 860 F.3d 1293, 1305 (10th Cir. 2017). We require a factual basis “to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.” United States v. Landeros-Lopez , 615 F.3d 1260, 1263 ( 10th Cir. 2010) (quoting United States v.
Keiswetter , 860 F.2d 992, 995 (10th Cir. 1988)). But the defendant does not have to provide the fact ual basis narrative. The district court “may look to answers provided by counsel for the defense and government, the presentence report, or . . . whatever means is appropriate in a specific case—so long as the factual basis is put on the record.” United States v. Moran , 452 F.3d 1167, 1171 Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 910 (10th Cir. 2006) (internal quot ation marks omitted). Counsel failed to instruct Mr. Kearn that the factual basis to validate his plea ma y come from the government or presentence report, and incorrectly told Mr. Kearn that he was required to personally supply it. This mattered to Mr. Kearn because he did not wantto personally describe the facts of his offenses—which involved his daughters—befo re his family and friends in open court. Thus, the district court determined this inadequate explanation undermined Mr. Kearn’s ability to adequately we igh the pros and cons of th e plea agreemen t. In the plea agreement context, counsel has a “critical obligation . . . to a dvise the client of ‘the advantages and disadvantag es of a plea agreement.’” Padilla v. Kentucky , 559 U.S. 356, 370 (2010) (quoting Libretti v. United States , 516 U.S. 29, 50–51 (1995)). Because counsel understated the be nefits and overstated the burdens of the plea offer, Mr. Kearn could not make an in formed choice about whether to accept it. The district court also found trial couns el did not understand the nuances of this kind of plea deal, which contributed to the inadequacy of the legal advice. See
Hinton , 571 U.S. at 274 (“[a]n attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential exampl e of unreasonable performance under Strickland. ”). Counsel testified to his understanding of the plea deal at the evid entiary hearing, and the district court determined his understanding of Rule 11(c)(1)(C) agreements was incomplete or imprecise. Sp ecifically, counsel “regularly advised his clients that they would have to admit th e facts surrounding the offens e . . . because he believed the law required it,” “testified that he wasn ’t aware of any enforcement mechanisms Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1011 to ensure the court actually sentenced the defendant to the term of imprisonment from the plea offer,” and “didn’t know if Mr . Kearn would actually receive a 10-year sentence if he pleaded guilty.” App. Vol. II, 456-57. Given these misunderstandings , and the intimate circum stances of Mr. Kearn’s crimes, the district court f ound only spending six minutes to explain the plea deal also contributed to its finding of defici ent performance. The government argues, however, that counsel was not required to spend more time discussing the plea because Mr. Kearn refused to plead guilty. The government frames this as a strategic choice—that time was better served focusing on trial st rategy after Mr. Kearn made clear he would not plead guilty . There are two problems with this argument. First, when asked at the evidentia ry hearing if counsel belie ved Mr. Kearn would plead guilty, counsel admitted he was not sure Mr . Kearn would proceed to trial until right before trial. Id. at 340–41 (“After we had the hearing right before we started our trial . . . from then on I was confident he was not going to enter a guilty plea.”). Because he was not convinced Mr. Kearn would pro ceed to trial even af ter their discussion about the plea agreement, counsel’s decisi on to only discuss the plea offer for six minutes—and never mention it again—can hardly be considered strategic. And it is certainly not a strategic choice to provi de incomplete or in accurate advice. Second, counsel also had an obligation to effectively assist Mr. Kearn in deciding whether to plead guilty. See Padilla , 559 U.S. at 364 (i nternal quotation marks omitted) (“Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel.”); United States v. Washington , 619 F.3d 1252, Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1112 1259 (10th Cir. 2010) (defendants have “t he right to make a reasonably informed decision whether to accept a plea offer”). A nd “[a]lthough a defendan t’s proclamation of innocence . . . may affect the advice counsel gi ves[,]” it “does not relieve counsel of his normal responsibilities under Strickland .” Burt v. Titlow , 571 U.S. 12, 22 (2013). As Mr. Bell explained at the evidentiary hearing, it is common for defendants to maintain their innocence when charged w ith sensitive crimes, like child abuse cases. But it is the job of the attorney to adequately e xplain the plea and to help lower that “psychological hurdle.” App. Vol. II, 458. In any case, Mr. Kearn’s “choice to for go a plea was no choice at all, being grounded on faulty counsel and therefore immaterial.” Byrd v. Skipper , 940 F.3d 248, 259 (6th Cir. 2019) (internal quotation marks omitted). His consideration and ultimate decision regarding the government’s plea offe r was based on faulty advice. He decided to proceed to trial becau se counsel failed to adequately explain the benefits of accepting it and incorrectly told him he would have to supply the factual basis himself rather than an alternative method. In sum, the district court did not err in finding that counsel’s representation of the plea bargain, when viewed in the aggregate, fell below an objective standard of reasonableness.
C. Prejudice The government also contends the di strict court erred in finding prejudice flowing from counsel’s ineff ective assistance. Again, it argues Mr. Kearn has not shown he would have accepted a plea agre ement if adequately counseled prior to Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1213 trial. The district court disagreed, pointing to (1) ev idence showing Mr. Kearn was amenable to accepting a guilty pl ea so long as he did not have to set forth the facts of his offense in open court, and (2) the signi ficant disparity betwee n the plea offer and Mr. Kearn’s sentencing exposure if c onvicted as contemporaneous evidence supporting his claim he would have pleaded guilty if properly advised. We see no flaw in th e court’s reasoning. To show prejudice, a defendant must s how “there is a reasonable probability that, but for counsel’s errors, he would [] have pleaded guilty.” See United States v. Clingman , 288 F.3d 1183, 1186 (10th Cir. 2002). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694. The likelihood a defendant would have accepted a guilty plea must be “‘substantial,’ not just ‘conceivable.’” Cullen v. Pinholster , 563 U.S. 170, 189 (2011) (citing Harrington v. Richter , 562 U.S. 86, 111–12 (2011)). “ [I]t does not require that the [defendant] show that c ounsel’s deficient conduct more likely than not altered the outcome in the case . . . [but] mere spec ulation is not sufficient to satisfy this burden.” Byrd v. Workman , 645 F.3d 1159, 1168 (10th Ci r. 2011) (internal quotation marks omitted). In summary, in the plea bargain context, a defendant must show that: [1] [the] defendant would have accepted the plea . . . [2] the prosecution would not have withdr awn it in light of intervening circumstances . . . [3] the court would have accepted its terms, and . . . [4] the conviction or sent ence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1314 Lafler , 566 U.S. at 164; see also Smith v. Allbaugh , 921 F.3d 1261, 1271 (10th Cir. 2019) (same). The government does not dispute Mr. Kear n’s ability to sati sfy the second and fourth requirements, and the district c ourt acknowledged it woul d have accepted his plea if offered. Accordingly, only the fi rst requirement is dis puted on appeal. We agree with the district cour t there is a reasonable prob ability Mr. Kearn would have pleaded guilty if properly advised and that he was therefore substantially prejudiced by counsel’s deficient performance. These types of cases inevitably requi re a backward-looking counterfactual assessment of what the wo rld would have been absent ineffective assistance. Complicating this inquiry is the defendant’s after-the-f act knowledge that he would have been significantly better off if he had taken the plea bargain. In addressing this evidentiary dilemma, courts should “rem ain suspicious of bald, post hoc and unsupported statements th at a defendant would have changed his plea absent counsel’s errors[.]” Heard , 728 F.3d at 1184; and see Watson , 766 F.3d at 1226 (explaining that defendants need something mo re than a “self-serving statement” to make the case for prejudice). The “failure to point to any evidence in support of prejudice provides a sufficient basis, sta nding alone, to reject [an] ineffectiveassistance claim.” Watson , 766 F.3d at 1227. Thus, c ourts are required to locate from the plea bargain pro cess “contemporaneous evid ence to substantiate a defendant’s expressed preferences.” Dominguez , 998 F.3d at 1112 (citations omitted). Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1415 The Supreme Court has given some guidance to courts in evaluating ineffective assistance cl aims involving plea bargaini ng. The most recent is Lee v. United States , 582 U.S. 357 (2017). In that case, the defendant claimed he would not have pleaded guilty to aggravated felony ch arges if he had been properly informed it would lead to his deportation. Id. at 361. A magistrate judge accepted testimony that “deportation was the determinative issue in L ee’s decision whether to accept the plea,” that his attorney “assured him [] [] deportati on was not in the plea agreement,” and that his attorney would have advise d Lee to go to trial if he had known Lee would be deported upon pleading guilty. Id. at 362. But the district court denied relief, and the Sixth Circuit affirmed the denial. To evaluate this claim, the Supr eme Court looked for contemporaneous evidence from the plea bargai n process to bolster the defendant’s testimony. Id. at 369. It looked back at the time the plea was offere d for conduct or statements made by Lee to support his “post hoc” claim he would not ha ve accepted the plea deal if he knew it would lead to his deportation. The Court found Lee asked his atto rney “repeatedly” if accepting the plea would put him at risk of de portation, and found th at, during his plea colloquy, the judge warn ed of deportation and Lee turned to his attorney for advice. Id. Only after his attorney “assured him that th e judge’s statement wa s a standard warning was Lee willing to proceed to plead guilty.” Id. Thus, the Court found “no reason to doubt the paramount im portance Lee placed on avoiding deportation,” id. at 370, and determined there was a reasonable probability that, but for his a ttorney’s deficient assistance, he would not have pleaded guilty, id. at 371. Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1516 With these cases in mind, we turn to th e district court’s finding of prejudice. In the evidentiary hearing, Mr. Kearn testified that if he had known the government could supply the factual basis for the plea, he would have pleaded guilty. The district court determined his “main sticking poin t . . . [was] his unwillingness to admit the facts of his charged offense in open court.” App. Vol. II, 481. The court found that with the correct understanding that the govern ment could supply the factual basis for the guilty plea, Mr. Kearn’s decision-making process would have likely been altered. The government, however, contends that even though it could have supplied the factual basis, Mr. Kearn never would admit his legal and factual guilt to enter a guilty plea. It says this is so because he told his couns el “he would not plead guilty” because “he didn’t do it—didn’t do what he was charged with.” Id. at 454. The district court rejected this argum ent. It found that although Mr. Kearn testified he could not say he “knowingly co mmitted the crime and was, in fact, guilty of it . . . he could have acknowledged the g overnment had evidence to convict him at trial, and that after making that statem ent he would have been willing to plead guilty.” Id. at 482 (internal quotation marks om itted). In other words, Mr. Kearn was open to admitting he knowingly committe d the offense and was guilty of it only after the government supplied the factual basis. 2 And when Mr. Kear n was reoffered the

2 The district court correc tly juxtaposed (1) admitting th e factual basis of the crime for which the defendant is pleading guilty to, and (2) admitting guilt. It explained “[t]he guilty plea is an independent act with its own legal conse quences separate and apart from the factual basis for the guilty plea,” and emphasized that “[n]o matter Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1617 plea deal, he did in fact pl ead guilty after the government supplied the factual basis. The district court found Mr. Kearn’s testimony that he would have pleaded guilty, so long as he did not have to supply the factual basi s for his plea, credible. And we “especially defer to a district court’s fi ndings on witness credibility.” United States v. Jordan , 806 F.3d 1244, 1252 (10th Cir. 2015) (internal quotation marks omitted) . The testimony was further bolstered by Mr. Bell’s evaluation of how a properly-counseled discussion of the plea agreement should work in these circumstances. The district court viewed counsel’s te stimony that he was only certain Mr. Kearn was not going to enter a guilty plea until right before th e trial started as contemporaneous evidence Mr. Kearn was amen able to pleading guilty. App. Vol II, 480-81. The district cour t found, but did not categor ize, two more facts as contemporaneous evidence that Mr. Kearn would have accep ted the plea deal. First, Mr. Kearn discussed the govern ment’s proposed plea with c ounsel, rather than flatly refusing to entertain the topic. See Byrd , 940 F.3d at 258–59 (finding evidence defendant was amenable to pleading guilty because he asked his attorney about the possibility of pleading). Second, toward th e end of their short consultation, counsel told Mr. Kearn it was “too bad there’s not a no contest plea.” App. Vol. II, 454. This statement reflects Mr. Kearn’s fears about what a plea deal would require of him, but that he was at least amenable to accepting a different formulation.

who supplies the factual basi s for the plea and no matter how they supply it, a defendant, to plead guilty, still must en ter a guilty plea.” App. Vol. II, 512. Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1718 The government again points to Mr. K earn’s statements about refusing to plead guilty as driving the opposite conc lusion—that he was not amenable to pleading guilty. But Mr. K earn “lacked the requisite information to weigh the options in front of him, and whatever de sire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him

. ” Byrd , 940 F.3d at 258. And as the district court noted, we cannot “rationally expect defendants to theorize contemporaneously about the decisions they would make if th ey were receiving different a dvice. If courts required this kind of evidence, no defendant could show prejudice.” App. Vol. II, 476. Thus, Mr. Kearn’s “interest in proceed ing to trial was rooted in misinformation gleaned from his counsel’s faulty advice, making it an unreliable metric of reasonably probable
outcomes.” Byrd , 940 F.3d at 258. Finally, the district court pointed out the significant disparity between the plea bargain—10 years—his exposure—30 year s—and his actual sentence—24 years. The government contends sent encing disparity is irrelevant because it would not have made a difference in Mr. Kearn’s willingne ss to plead guilty sinc e he was dead set against doing so. But the disparity is relevant in this case. Mr. Kearn was not adequately informed that the district court would have been bound by the agreed-upon sentence. Thus, counsel improperly skewed Mr. K earn’s attention away from the sizeable sentencing disparity he faced in favor of the need for him to personally supply a factual basis. We have previously expl ained our assessment of the prejudice prong Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 1819 depends on objective factors such as “the length of the sentence he faced under the terms of the plea deal, the prospect of mi nimizing exposure to other charged counts, and so on.” Heard , 728 F.3d at 1183. And sentencing disparity is “strong evidence of a reasonable probability that a properly ad vised defendant would have accepted a plea offer, despite earlier protestations of innocence.” Smith v. United States , 348 F.3d 545, 552 (6th Cir. 2003). 3 Mr. Kearn’s plea offered a 10-year sent ence in exchange for a guilty plea on one count, and by going to tria l Mr. Kearn risked sentenci ng exposure of more than 30 years in prison. Because the plea was very favorable, and there was overwhelming evidence of guilt, 4 this fact weighs in favor of the di strict court’s finding of prejudice.
* * * In sum, the district court did not err in finding that Mr. Kearn met the Strickland elements of deficient pe rformance and prejudice.
III. Conclusion We affirm the district court’s grant of habeas relief on Mr. Kearn’s ineffective assistance of counsel claim.

3 Similarly, in United States v. Knight , 981 F.3d 1095, 1102-1107 (D.C. Cir. 2020), the D.C. Court of Appeals, in ex amining the prejudice prong in a plea bargain case, looked at (1) the disparity in se ntencing exposure be tween accepting the plea offer and going to trial, and (2) evidence showing the defendant was amenable to accepting the plea offer. 4 In a prior appeal, we found the “evid ence of Kearn’s guilt [] overwhelming.” United States v. Kearn , 863 F.3d 1299, 1312 (10th Cir. 2017). Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 19