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 Attorney (Kate E. Brubacher, 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 Federal 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 child pornography offenses 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

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exchange for Mr. Kearn’s guilty plea to one of the counts. After a six-minute 

conversation with his trial counsel discussing the plea agreement he chose to reject 

the offer and proceed to trial. He was convicted on all three counts and sentenced to 

24 years in prison. He exhausted 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 deficient advice about the proposed plea deal, 

and (2) there was a reasonable probability that, but for counsel’s errors, he would 

have pleaded guilty. The court ordered the government to reoffer the plea, 

concluding no reasonable person would have rejected the offer knowing and 

understanding its contours 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 inaccurate and misleading information in that conversation. 

Given the substantial difference in sentencing exposure—20 years—and the evidence 

suggesting Mr. Kearn was amenable to pleading guilty had he been adequately 

advised, the court reasonably found that Mr. Kearn would have accepted a properly 

presented plea deal and avoided trial. 

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I. Background 

A grand jury indicted Mr. Kearn in 2013 on three charges: (1) permitting his 

minor children to engage in sexually explicit conduct for the purpose of producing a 

visual depiction of such conduct, 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 minor 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 April 19, 2021, to resolve the 

factual issue of whether Mr. Kearn’s counsel provided ineffective assistance 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 understanding 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 reluctant 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), allowing Mr. Kearn to plead guilty only to 

the possession offense in exchange for a sentence of 10 years. Mr. Kearn’s trial 

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counsel discussed the government’s plea offer with Mr. Kearn once for six minutes. 

Although counsel recognized the plea offer was “huge” for Mr. Kearn given his 

sentencing exposure at trial (30 years), counsel did not advise Mr. Kearn on whether 

he should accept the offer, failed to weigh the pros and cons of the offer, and 

neglected to explain the mechanics of a Rule 11(c)(1)(C) plea. Counsel 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 provided 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 left 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 there was still a chance Mr. Kearn would plead guilty 

until moments before trial. 

Mr. Bell testified about the problems with trial counsel’s short conversation 

with Mr. Kearn. He explained it is common for defendants charged with sensitive 

crimes to profess their innocence. But that he tries to lower the “psychological 

hurdle,” especially when the plea deal offers a substantially 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 continue those conversations 

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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 court before his friends and family because 

the crimes involved his own daughters. But he also testified that if he had known he 

did not have to provide the factual basis himself he would 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 the United States[.]” 28 U.S.C. 

§ 2255(a). The Sixth Amendment “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, “the 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 

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reasonableness.’” Lee v. United States, 582 U.S. 357, 363 (2017) (quoting 

Strickland, 466 U.S. at 688)). And to show prejudice, “[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 prejudice inquiry is largely objective. United 

States v. Dominguez, 998 F.3d 1094, 1111 (10th Cir. 2021). A defendant’s “mere 

allegation” that he would have pleaded guilty “but for his counsel’s errors, although 

necessary, is ultimately insufficient 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 would 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 findings 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 (internal quotation marks omitted). 

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B. Deficient Performance 

The first Strickland prong requires that the defendant show deficient advice in the 

plea-bargaining process. The government contends the district court erred in finding 

deficient performance because Mr. Kearn never intended to plead guilty to the charges no 

matter how he was counseled prior to trial. 

To show counsel’s assistance was constitutionally 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 indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” Strickland, 

466 U.S. at 669. “A fair assessment of attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from 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: The proper measure of attorney performance 

remains simply reasonableness under prevailing professional norms.” Hinton v. 

Alabama, 571 U.S. 263, 273 (2014) (internal quotation marks omitted). 

The district court found Mr. Kearn’s counsel deficient on several fronts. First, 

he failed to explain accurately the benefits and burdens imposed by a Rule 

11(c)(1)(C) plea. Under Rule 11(c), when a court accepts the plea, 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] 

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recommendation or request binds the court once the court accepts the plea agreement”); 

see also Fed. R. Crim. P. 11(c)(5)(B) (“If the court rejects a plea agreement . . . the court 

must . . . give the defendant an opportunity 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—defendants either receive the sentence agreed to or they can 

withdraw their plea. 

1

 In relevant part, Rule 11(c) provides: 

(3) Judicial Consideration of a Plea Agreement. 

(A) To the extent the plea agreement is of the type specified in 

Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or 

defer a decision until the court has reviewed the presentence report. 

(B) To the extent the plea agreement is of the type specified in 

Rule 11(c)(1)(B), the court must advise 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 specified in Rule 11(c)(1)(A) or (C), the 

court must do the following on the record and in open court (or, for good 

cause, in camera): 

(A) inform the parties that the court rejects 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 favorably toward the defendant than 

the plea agreement contemplated. 

Fed. R. Crim. P. 11(c). 

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After the evidentiary hearing, the district court determined counsel failed to 

explain that (1) if the court 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 proposed solution to, 

Mr. Kearn’s dilemma—he did not want to personally supply the factual basis for the 

plea. Instead, as the district court 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 that under Rule 11, “[b]efore entering judgment 

on a guilty plea, the court must determine 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 elements of the charged offense to ensure the admissions are 

factually sufficient to constitute 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 factual 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 

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(10th Cir. 2006) (internal quotation marks omitted). Counsel failed to instruct Mr. Kearn 

that the factual basis to validate his plea may 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 want to personally describe the facts of his 

offenses—which involved his daughters—before his family and friends in open court. 

Thus, the district court determined this inadequate explanation undermined Mr. 

Kearn’s ability to adequately weigh the pros and cons of the plea agreement. In the 

plea agreement context, counsel has a “critical obligation . . . to advise the client of 

‘the advantages and disadvantages 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 benefits and overstated the burdens of the 

plea offer, Mr. Kearn could not make an informed choice about whether to accept it. 

The district court also found trial counsel 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 example of unreasonable performance under Strickland.”). 

Counsel testified to his understanding of the plea deal at the evidentiary hearing, and 

the district court determined his understanding of Rule 11(c)(1)(C) agreements was 

incomplete or imprecise. Specifically, counsel “regularly advised his clients that 

they would have to admit the facts surrounding the offense . . . because he believed 

the law required it,” “testified that he wasn’t aware of any enforcement mechanisms 

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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 circumstances of Mr. Kearn’s 

crimes, the district court found only spending six minutes to explain the plea deal 

also contributed to its finding of deficient 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 strategy after Mr. Kearn made 

clear he would not plead guilty. There are two problems with this argument. First, 

when asked at the evidentiary hearing if counsel believed 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 proceed to trial even after their discussion 

about the plea agreement, counsel’s decision 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 provide incomplete or inaccurate 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 (internal 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, 

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1259 (10th Cir. 2010) (defendants have “the right to make a reasonably informed 

decision whether to accept a plea offer”). And “[a]lthough a defendant’s proclamation of 

innocence . . . may affect the advice counsel gives[,]” 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 with sensitive crimes, like child abuse cases. But it is 

the job of the attorney to adequately explain the plea and to help lower that 

“psychological hurdle.” App. Vol. II, 458. 

In any case, Mr. Kearn’s “choice to forgo 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 offer was based on faulty advice. He decided 

to proceed to trial because 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 district court erred in finding prejudice 

flowing from counsel’s ineffective assistance. Again, it argues Mr. Kearn has not 

shown he would have accepted a plea agreement if adequately counseled prior to 

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trial. The district court disagreed, pointing to (1) evidence showing Mr. Kearn was 

amenable to accepting a guilty plea so long as he did not have to set forth the facts of 

his offense in open court, and (2) the significant disparity between the plea offer and 

Mr. Kearn’s sentencing exposure if convicted as contemporaneous evidence 

supporting his claim he would have pleaded guilty if properly advised. 

We see no flaw in the court’s reasoning. 

To show prejudice, a defendant must show “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 counsel’s deficient conduct more likely than not altered the 

outcome in the case . . . [but] mere speculation is not sufficient to satisfy this 

burden.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 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 withdrawn it in light of intervening 

circumstances . . . [3] the court would have accepted its terms, 

and . . . [4] the conviction or sentence, or both, under the offer’s 

terms would have been less severe than under the judgment and 

sentence that in fact were imposed. 

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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. Kearn’s ability to satisfy the second and 

fourth requirements, and the district court acknowledged it would have accepted his 

plea if offered. Accordingly, only the first requirement is disputed on appeal. We 

agree with the district court there is a reasonable probability 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 require a backward-looking counterfactual 

assessment of what the world would have been absent ineffective assistance. 

Complicating this inquiry is the defendant’s after-the-fact knowledge that he would 

have been significantly better off if he had taken the plea bargain. In addressing this 

evidentiary dilemma, courts should “remain suspicious of bald, post hoc and 

unsupported statements that 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 more 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, standing alone, to reject [an] ineffectiveassistance claim.” Watson, 766 F.3d at 1227. Thus, courts are required to locate 

from the plea bargain process “contemporaneous evidence to substantiate a 

defendant’s expressed preferences.” Dominguez, 998 F.3d at 1112 (citations omitted). 

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The Supreme Court has given some guidance to courts in evaluating 

ineffective assistance claims involving plea bargaining. 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 charges 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 Lee’s decision whether to accept the plea,” 

that his attorney “assured him [] [] deportation was not in the plea agreement,” and that 

his attorney would have advised 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 Supreme Court looked for contemporaneous 

evidence from the plea bargain process to bolster the defendant’s testimony. Id. at 369. 

It looked back at the time the plea was offered for conduct or statements made by Lee to 

support his “post hoc” claim he would not have accepted the plea deal if he knew it 

would lead to his deportation. The Court found Lee asked his attorney “repeatedly” if 

accepting the plea would put him at risk of deportation, and found that, during his plea 

colloquy, the judge warned of deportation and Lee turned to his attorney for advice. Id. 

Only after his attorney “assured him that the judge’s statement was a standard warning 

was Lee willing to proceed to plead guilty.” Id. Thus, the Court found “no reason to 

doubt the paramount importance Lee placed on avoiding deportation,” id. at 370, and 

determined there was a reasonable probability that, but for his attorney’s deficient 

assistance, he would not have pleaded guilty, id. at 371. 

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With these cases in mind, we turn to the 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 point . . . [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 government 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 counsel “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 argument. It found that although Mr. Kearn 

testified he could not say he “knowingly committed the crime and was, in fact, guilty 

of it . . . he could have acknowledged the government had evidence to convict him at 

trial, and that after making that statement he would have been willing to plead 

guilty.” Id. at 482 (internal quotation marks omitted). In other words, Mr. Kearn was 

open to admitting he knowingly committed the offense and was guilty of it only after

the government supplied the factual basis.2

 And when Mr. Kearn was reoffered the 

2

 The district court correctly juxtaposed (1) admitting the 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 consequences separate and 

apart from the factual basis for the guilty plea,” and emphasized that “[n]o matter 

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plea deal, he did in fact plead 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 basis for his plea, credible. And we “especially 

defer to a district court’s findings 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 testimony that he was only certain Mr. 

Kearn was not going to enter a guilty plea until right before the trial started as 

contemporaneous evidence Mr. Kearn was amenable to pleading guilty. App. Vol II, 

480-81. The district court found, but did not categorize, two more facts as 

contemporaneous evidence that Mr. Kearn would have accepted the plea deal. First, 

Mr. Kearn discussed the government’s proposed plea with counsel, 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 the 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 basis for the plea and no matter how they supply it, a 

defendant, to plead guilty, still must enter a guilty plea.” App. Vol. II, 512. 

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The government again points to Mr. Kearn’s statements about refusing to 

plead guilty as driving the opposite conclusion—that he was not amenable to 

pleading guilty. But Mr. Kearn “lacked the requisite information to weigh the 

options in front of him, and whatever desire 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 they were receiving different advice. If courts required this 

kind of evidence, no defendant could show prejudice.” App. Vol. II, 476. Thus, Mr. 

Kearn’s “interest in proceeding 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 years—and his actual sentence—24 years. 

The government contends sentencing disparity is irrelevant because it would not have 

made a difference in Mr. Kearn’s willingness to plead guilty since 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. Kearn’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 explained our assessment of the prejudice prong 

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depends on objective factors such as “the length of the sentence he faced under the 

terms of the plea deal, the prospect of minimizing 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 advised 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 sentence in exchange for a guilty plea on 

one count, and by going to trial Mr. Kearn risked sentencing 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 district court’s finding of prejudice. 

* * * 

In sum, the district court did not err in finding that Mr. Kearn met the Strickland

elements of deficient performance 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 examining the prejudice prong in a plea bargain 

case, looked at (1) the disparity in sentencing exposure between 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 “evidence of Kearn’s guilt [] overwhelming.” 

United States v. Kearn, 863 F.3d 1299, 1312 (10th Cir. 2017). 

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