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The Honorable Stephen H. Limbaugh, United States District

Judge for the Eastern District of Missouri.

___________

No. 95-2686

 ___________

United States of America, *

 *

Plaintiff-Appellee, *

 * Appeal from the United States

v. * District Court for the Eastern

 * District of Missouri.

William Terrell Burney, * 

 * 

Defendant-Appellant. *

 

_______________

Submitted: November 14, 1995

 Filed: February 7, 1996 _______________

Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges. _______________ 

FLOYD R. GIBSON, Circuit Judge.

William Burney appeals the district court's1 order denying his

motion to withdraw his guilty pleas to three firearm violations.

We affirm. 

I. BACKGROUND

On March 22, 1994, a three-count indictment was returned

against William Burney charging him with two counts of being a

felon in possession of a firearm in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1) (1988) (Counts I and II), and one count of

possession of an unregistered firearm in violation of 26 U.S.C. §§

5861(d) and 5871 (1988) (Count III). On March 29, Burney pleaded
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"If the sentence imposed on the count carrying the highest

statutory maximum is less than the total punishment, then the

sentence imposed on one or more of the other counts shall run

consecutively, but only to the extent necessary to produce a

combined sentence equal to the total punishment." USSG

§5G1.2(d).

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guilty to all three counts pursuant to a written plea agreement in

exchange for the Government's agreement to delete all references to

18 U.S.C. § 924(e)(1) in Counts I and II. 

Due to the application of section 5G1.2(d) of the United

States Sentencing Guidelines,2 the presentence investigation report

recommended a guideline sentencing range of 168 to 210 months

imprisonment. On June 14, 1995, the day he was to appear for

sentencing, Burney filed a motion to withdraw his pleas of guilty

pursuant to Fed. R. Crim. P. 32(e). Burney alleged in his motion

that he been misled by both his defense counsel and the district

court to believe that his maximum sentence could not exceed ten

years imprisonment. Burney testified in support of his motion that

he had been unaware of USSG §5G1.2(d) and its effect on his

sentencing range, and that had he known that he faced a fourteenyear minimum sentence, he never would have pleaded guilty.

The district court denied the motion, finding that Burney's

pleas were competently and voluntarily given with full knowledge of

the maximum possible penalty. The district court went on to adopt

the recommendations contained in the presentence investigation

report and subsequently sentenced Burney to 120 months imprisonment

on Count I, 90 months imprisonment on Count II to be served

concurrently with the term imposed in Count I, and 90 months

imprisonment on Count III to be served consecutively with the terms

imposed in Counts I and II, resulting in an aggregate term of 210

months imprisonment. The court also sentenced Burney to two years

of supervised release and imposed an aggregate special assessment

of $150. Burney appeals.
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II. DISCUSSION

"It is well settled that a defendant does not have an absolute

right to withdraw a guilty plea before sentencing." United States

v. Newson, 46 F.3d 730, 732 (8th Cir. 1995). Instead, the burden

is on the defendant to establish a fair and just reason for the

withdrawal. Fed. R. Crim. P. 32(e); Newson, 46 F.3d at 732. This

determination lies within the sound discretion of the trial court,

and we will reverse its decision only for an abuse of discretion.

United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991), cert.

denied, 504 U.S. 921 (1992).

Burney argues that he established a fair and just reason for

withdrawing his pleas when he testified that both defense counsel

and the district court had misled him to believe that the maximum

possible prison sentence he could receive was ten years. Had he

known that he faced a minimum sentence of fourteen years, or even

the possibility of consecutive sentencing, Burney argues that he

never would have pleaded guilty. As such, he asserts that his

pleas were neither knowing nor voluntary.

We disagree. Neither the terms of the plea agreement nor the

prosecuting attorney ever promised Burney that he would be entitled

to a specific sentencing range. In addition, the district court

made it clear to Burney before it accepted his pleas that he should

not and could not rely on estimations of his possible sentencing

range. First, the district court informed him that the maximum

statutory penalty for each of the three offenses was ten years

imprisonment. The district court then advised Burney that the

presentence investigation report would recommend a sentencing range

pursuant to the United States Sentencing Guidelines. It went on to

state that it could not predict what that range would be, and that

any estimation of the possible sentencing range by defense counsel

or anyone else could be wrong. Burney stated that he understood
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all of this. Finally, the district court asked Burney if he was

entering his pleas solely on the basis of what defense counsel or

someone else may have estimated his sentence range would be.

Burney replied that he was not. 

Based on this colloquy, the district court concluded at

sentencing that Burney, despite any erroneous predictions on the

part of defense counsel, was fully aware of the potential range of

punishment to which he was exposing himself through his pleas. We

agree. Even if Burney, despite the best efforts of the district

court, was in fact laboring under the misconception that he faced

a total maximum sentence of ten years, our decision would remain

the same. A defendant's misapprehension of the application of the

Guidelines to his sentencing does not constitute a fair and just

reason for withdrawing a plea so long as the defendant was told the

range of potential punishment and that the Guidelines would be

applied to determine his sentence. United States v. Hoelscher, 914

F.2d 1527, 1544 (8th Cir. 1990), cert. denied, 500 U.S. 943 (1991).

This remains true even where such a misunderstanding is based on an

erroneous estimation by defense counsel. United States v. Ludwig,

972 F.2d 948, 950-51 (8th Cir. 1992). 

Burney further contends that the district court itself misled

him into believing that he faced no more than ten years total

imprisonment when it informed him that the maximum term of

imprisonment for each count was ten years. By failing to warn him

of the possibility of consecutive sentencing, Burney asserts that

the district court failed to inform him of "the mandatory minimum

penalty provided by law, if any, and the maximum possible penalty

provided by law" as required by Fed. R. Crim. P. 11(c)(1). 

We believe, however, that the district court fulfilled its

Rule 11(c) obligations by explicitly informing Burney twice that

the maximum term of imprisonment for each of the three counts was
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District court: "You understand that these are the maximums

as provided by law as to each of these three counts?"

Burney: "Yes, sir, I do." [tr. p.27].

District court: "It's no time in jail up to ten years as to

each of the three counts." [tr. p.29].

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ten years.3 Rule 11 does not require the sentencing court to

inform the defendant of the applicable guideline range or the

actual sentence he will receive. Thomas v. United States, 27 F.3d

321, 324 (8th Cir. 1994) (holding that defendant had no right to be

specifically apprised of effect of career offender provision on his

sentencing range). "The defendant's right to be apprised of the

court's sentencing options is no greater than the provisions of

Fed. R. Crim. P. 11(c)(1), which requires only that the court

inform the defendant of the applicable mandatory minimum and

maximum sentences." Id. 

To the extent that the sentencing court is obligated under the

terms of Rule 11(c)(1) to disclose the possibility of consecutive

sentencing in order to fully apprise the defendant of the mandatory

minimum and the maximum possible penalty provided by law, we

believe that the district court implicitly did so by telling Burney

that ten years was the maximum term of imprisonment for each of the

three counts. See United States v. Hamilton, 568 F.2d 1302, 1306

(9th Cir.) (per curiam), cert. denied, 436 U.S. 944 (1978).

(Court's warning that defendant was subject to a possible 15-year

sentence as to each of two counts implicitly alerted defendant to

the possibility of consecutive sentencing). Taken out of context,

the district court's statement that the maximum possible sentence

on each count could not exceed ten years could seem misleading.

But when we examine the plea colloquy in its entirety, we are

satisfied that the district court fully informed Burney of the

consequences of his pleas. As such, we conclude that the district

court did not abuse its discretion in concluding that Burney has

failed to establish a fair and just reason for withdrawing his
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guilty pleas. 

III. CONCLUSION

For the above reasons, we affirm the district court's denial

of Burney's motion to withdraw his pleas of guilty.

A true copy.

Attest:

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