United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2434

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Francisco Granados, * [PUBLISHED]

*

Appellant. *

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Submitted: November 16, 1998

Filed: February 11, 1999 

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Before BEAM, LAY, and LOKEN, Circuit Judges.

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PER CURIAM.

On July 30, 1990, Francisco Granados pleaded guilty to one count of conspiracy

to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. On appeal,

Granados challenged the district court’s enhancement of his sentence for his possession

of a firearm during the commission of the conspiracy. He also challenged the amount

of cocaine for which he was held accountable. We affirmed Granados’ sentence of 175

months. See United States v. Granados, 962 F.2d 767 (8th Cir. 1992). 

In May of 1996, Granados filed a 28 U.S.C. § 2255 petition with the district

court seeking to vacate, set aside, or correct his sentence on the grounds that his
The district court observed: 1

I find that Brown failed in his duty to his client. A defendant has

a right to know, to the fullest extent possible, what the consequences of

a plea will be. The evidence presented at the hearing overwhelmingly

shows that Brown was not aware of what impact the Sentencing

Guidelines would have on the petitioner’s sentence, did not inform the

petitioner that such guidelines might be applied, and failed to consult the

guidelines to ascertain any such effect. Although Brown could not have

known exactly what the petitioner’s sentence would be, he was required

to investigate all possible consequences of a guilty plea and, at minimum,

not to make uninformed promises about the petitioner’s sentence. I find

Granados’ attorney was ineffective in the advice he gave Granados

regarding his possible sentence.

Order on Pet. to Vacate Sentence at 9-10.

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counsel was ineffective and his guilty plea was involuntary. At that time, Granados

claimed that his counsel promised him that the maximum sentence he would receive

was five years. Granados argued that had he known of the likely sentence he would

receive, he would not have agreed to plead guilty. After an evidentiary hearing lasting

two days, the district court found that Granados’ attorney was ineffective because he

failed to consult or explain to Granados how the United States Sentencing Guidelines

would affect his sentence. However, the district court denied Granados post1

conviction relief on the ground that the deficiency of his counsel did not result in

prejudice. The court found that Granados was not prejudiced by his attorney’s

ineffectiveness because the court informed Granados of the statutory minimum and

maximum sentence at the time of his plea and because Granados had signed a plea

agreement stating that he understood that his maximum sentence could be forty years.

Therefore, the court held that Granados’ plea would stand. This court granted a

certificate of appealability on the sole issue of ineffective assistance of counsel. We

reverse and remand to the district court for a new sentencing hearing.
There can be little question that the plea agreement served as an inducement for 2

Granados’ guilty plea as evidenced by the following questions and answers contained

in the Petition to Enter Plea of Guilty:

Q. 36(a): Has any plea agreement been made by you with anyone

which causes you to plead GUILTY?

A: Yes.

Q. 36(b): If so, exactly what is that agreement, as you understand it?

A: Government will amend indictment to charge Defendant

with one count of conspiracy to distribute more than 3.5 kg,

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On appeal from the denial of post-conviction relief, Granados contends that

ineffective assistance of his counsel prejudiced him because he would not have pleaded

guilty if his attorney had informed him of the sentence he would receive under the

Sentencing Guidelines. This argument is meritless because the law in this circuit is

clear that a defendant who pleads guilty has no right to be apprised of the sentencing

options outside the statutory maximum and minimum sentences. Thomas v. United

States, 27 F.3d 321, 326 (8th Cir. 1994). Furthermore, a defendant’s reliance on an

attorney’s mistaken impression about the length of sentence is insufficient to render

a plea involuntary as long as the court informed the defendant of his maximum

possible sentence. See Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir.

1990). It is clear from the record that Granados was informed of his possible

maximum sentence. Notwithstanding our rejection of this argument, we find on an

overall review of the record that Granados was prejudiced relating to the sentence

Granados received.

DISCUSSION

Granados was indicted for conspiracy to distribute cocaine along with several

of his co-conspirators. Pursuant to a plea agreement with the government, which was 2
but less than 5kg of cocaine.

At the Rule 11 hearing held on July 31, 1990, when the defendant entered his 3

guilty plea, the court was aware of the plea agreement and affirmatively announced

that it chose “not to decide now whether to accept the plea agreement.” Tr. of Guilty

Plea at 41:22-23. At the sentencing hearing held on November 2, 1990, however, the

court stated “I did not decide whether to accept the plea agreement earlier, so I do now

accept the plea agreement . . . .” Tr. of Sentencing Hearing at 32:1-3. After accepting

the plea agreement, Fed. R. Crim. P. 11(e)(3) requires the court to “inform the

defendant that it will embody in the judgment and sentence the disposition provided

for in the plea agreement.” The record indicates that did not occur.

The Assistant United States Attorney made the following statements to the

4

district court at sentencing: 

The entire conspiracy that has been charged and the guideline range . . .

adequately and accurately reflects Mr. Granados’ involvement.

. . . I believe the information that’s included within the pre-sentence

report is accurate and it adequately reflects his involvement, and that Mr.

Granados should be sentenced within the guideline range that is provided.

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accepted by the court, Granados entered a plea of guilty to an amended indictment.

3

The original indictment charged Granados with conspiracy to possess more than 5

kilograms of cocaine and less than 15 kilograms of cocaine, the amount of cocaine

involved in the overall conspiracy. The government, however, in exchange for the

defendant’s plea of guilty, promised to amend the indictment to charge Granados with

one count of conspiracy to distribute more than 3.5 kilograms but less than 5 kilograms

of cocaine. In addition, as part of the plea bargain the government agreed that “[t]he

defendant in this case is pleading guilty to a charge which adequately reflects the

seriousness of the actual offense behavior and the relevant conduct of the defendant

as defined by the U.S. Sentencing Commission (See e.g., U.S. Sentencing Guidelines

§ 1B1.3).” Notwithstanding this agreement, neither counsel for Granados nor the

government objected to the Pre-Sentence Report (PSR), which attributed 5 to 15

kilograms of cocaine to Granados. Although Granados made written objection to the 4
Tr. of Sentencing Hearing at 35: 9-25.

This case is different than the routine case where a defendant may be held

5

responsible for the overall amount of cocaine involved in the conspiracy if his coconspirator’s sales were in furtherance of the conspiracy and were either known by or

foreseeable to him. See U.S.S.G. § 1B1.3, comment. (n.1) (Nov. 1990). In this case,

the government expressly agreed that Granados was involved in an amount more than

3.5, but less than 5 kilograms of cocaine, and that this amount as charged in the

amended indictment reflected the seriousness of Granados’ actual offense behavior and

relevant conduct. Thus, the government agreed that the scope of the relevant conduct

attributable to Granados would not exceed five kilograms of cocaine.

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amount attributed to him in the PSR, his counsel stood mute on this subject at the

sentencing hearing and never mentioned that the government had entered into a plea

bargain in which it agreed that the scope of the relevant conduct attributable to

Granados was limited to 3.5-5 kilograms of cocaine. On this basis, we believe

5

Granados’ attorney’s failure to read and understand the Sentencing Guidelines

prejudiced Granados. By not informing the court that the amount of cocaine involved

should not have exceeded 5 kilograms under the plea agreement and that consequently

petitioner’s offense level should have been 30 rather than 32, counsel’s professional

deficiencies allowed the government to violate the plea agreement. Thus, Granados

was sentenced under a higher base offense level. See United States Sentencing

Commission, Guidelines Manual, § 2D1.1(c)(4)-(5) (Nov. 1990). While Level 32

would have resulted in a sentencing range of 151-188 months, Level 30 would have

reduced the sentencing range down to a range of 121-151 months. See id. Ch. 5, Pt.

A. Thus, Granados was sentenced to serve an additional forty to fifty months because

his attorney was not familiar with the Guidelines and failed to challenge the

government’s breach of its plea agreement. In the present case the prosecutor also

failed to apprise the sentencing court of the government’s agreement as to relevant

conduct. In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court

recognized that “when a plea rests in any significant degree on a promise or agreement
Federal Rule of Criminal Procedure 52(b) states that “[p]lain errors or defects 6

affecting substantial rights may be noticed although they were not brought to the

attention of the court.” The Supreme Court has observed that “[i]n exceptional

circumstances, especially in criminal cases, appellate courts, in the public interest, may,

of their own motion, notice errors to which no exception has been taken, if the errors

are obvious, or if they otherwise seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Silber, 370 U.S. at 718, 82 S. Ct. at 1288 (quoting

United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1936)).

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of the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” See also United States v. Barresse, 115 F.3d 610, 612

(8th Cir. 1997) (“When the government fails to fulfill a material term of a plea

agreement, the defendant may seek specific performance or may seek to withdraw his

plea.”); United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (“Allowing

the government to breach a promise that induced a guilty plea violates due process.”).

Although Granados failed to raise these arguments in the district court or before

this court, we have authority to review this issue for plain error. See United States v.

Brown, 508 F.2d 427, 430 (8th Cir. 1974). The Supreme Court and this court have

recognized in criminal cases that appellate courts can examine a critical issue affecting

substantial rights sua sponte under Fed. R. Crim. P. 52(b). See Silber v. United States,

6

370 U.S. 717, 717-18, 82 S. Ct. 1287, 1288 (1962); United States v. Brown, 508 F.2d

427, 430 (8th Cir. 1974). There can be little doubt that the petitioner’s substantial

rights are affected if his prison sentence is longer than it should have been. 

On this basis we find the case should be remanded to the district court for a new

sentencing hearing to consider the government’s agreement that 3.5 to 5 kilograms of

cocaine would be the appropriate relevant conduct attributable to Granados.

Reversed and remanded.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.