*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 20 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-1104

v. (D. Colorado)

MILTON BEASLEY,

Defendant - Appellant.

(D.C. No. 91-CR-188-N) 

ORDER AND JUDGMENT*

Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.

Defendant Milton Beasley appeals the district court’s refusal to allow him

to withdraw his guilty plea on one charge of conspiracy to possess with intent to

distribute more than 50 grams of crack cocaine. We affirm.
1This was a type B plea agreement, as outlined in Fed. R. Crim. P. 11(e). See

United States v. Hyde, 117 S. Ct. 1630, 1633 (1997).

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I. BACKGROUND

The Friday night before his trial was scheduled to begin on Monday,

July 24, 1995, Mr. Beasley pled guilty to one count of conspiracy to possess with

intent to distribute more than 50 grams of crack cocaine, a violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(iii), 846 and 18 U.S.C. § 2. In exchange for Mr.

Beasley’s guilty plea, the government agreed not to oppose a three-point

reduction for acceptance of responsibility or Mr. Beasley’s request for designation

of place of confinement.1 

 After reviewing the document with his attorney, Mr. Beasley signed a “Plea

Agreement and Statement of Facts Relevant to Sentencing” (“the Agreement”). 

The Agreement set forth, in part, that Mr. Beasley would be sentenced under the

Sentencing Guidelines, that the court had discretion to impose any sentence up to

the statutory maximum of life imprisonment, and that the likely guideline range

would be 292-365 months based on a criminal history category of four. 

Thereafter, the district court conducted a full hearing pursuant to Rule 11. 

As a part of this hearing, the court questioned Mr. Beasley extensively concerning

his plea. Among other things, this questioning involved the following colloquy

regarding punishment which could be imposed for the offense:
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THE COURT: Mr. Beasley, do you understand that the

offense to which you are pleading guilty is a serious felony offense?

THE DEFENDANT: Yes, sir.

. . . .

THE COURT: I’m required to advise you of the statutory

penalty in this case, because this is the penalty to which you expose

yourself by pleading guilty. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: The maximum statutory penalty in this case for

this crime is life in prison and a $4 million fine. Do you understand

that?

THE DEFENDANT: Yes.

THE COURT: In addition, the minimum penalty—the

minimum penalty, the least that the Court can sentence you to under

the law is ten years in prison. Do you understand that?

THE DEFENDANT: Yes.

. . . .

THE COURT: The sentence in this case will actually be

imposed under the Sentencing Guidelines. Have you had a chance to

talk to [your attorney] about the way those guidelines work?

THE DEFENDANT: Yes.

THE COURT: I see that you and your attorney and the

government attorney have made some guideline calculations and

come up with a tentative sentencing range. Is that correct?

THE DEFENDANT: Yes.

THE COURT: That sentencing range is 292 months to 365

months. Is that right?

THE DEFENDANT: Yes.

THE COURT: Do you understand that that sentencing range

that you all calculated is not binding on the Court?

THE DEFENDANT: Yes.

THE COURT: Do you understand that the Court will make its

own determination of the applicable guideline range based on the

probation officer’s report and your attorney’s objections to the

report?

THE DEFENDANT: Yes.

THE COURT: Do you understand that . . . even after the

Court determines what guidelines apply to the case, the Court could,

in certain aggravating circumstances, depart upward all the way to

the statutory maximum of life in prison? Do you understand that?
-4-

THE DEFENDANT: Yes.

. . . .

THE COURT: Do you understand that you won’t be able to

change your mind later and tell us all that you want to plead not

guilty?

THE DEFENDANT: Yes.

. . . .

THE COURT: Do you understand that if the sentence in this

case is more severe than the sentence you expect, you will still be

bound by your plea agreement and will have no right to withdraw it?

THE DEFENDANT: Yes.

R. Vol. 9 at 12-16.

In response to further questioning by the court, Mr. Beasley indicated he

had read the indictment and had fully discussed the charges with his counsel, with

whom he was satisfied. Id. at 5, 10. When the court informed him that it was not

inclined to grant an adjustment for acceptance of responsibility because of the

last minute timing of the plea agreement, Mr. Beasley said he still wanted to plead

guilty. Id. at 6-7. The court also informed him that if the government chose not

to file a motion for lenient treatment under § 5K1.1 of the Sentencing Guidelines,

he was still bound by the agreement and could not withdraw his plea. Id. at 8. 

When the court sensed some reluctance at one point on Mr. Beasley’s part and

inquired about it, id. at 10-11, Mr. Beasley assured the court he wanted to plead

guilty. Id. at 11.

The court also made inquiry into the facts in order to establish a factual

basis for accepting the guilty plea. Id. at 20-23. When asked to tell what he had
2Now rule 32(e) of the Federal Rules of Criminal Procedure.

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done, Mr. Beasley admitted that he had knowledge of the conspiracy, that he had

ridden with a co-conspirator from Los Angeles to Denver transporting six ounces

of crack cocaine, and that he had sold the cocaine in Denver and had split the

profits with co-conspirators. Id. at 20-22. Although Mr. Beasley did not agree

with all of the facts as outlined in the plea agreement, he stated that the

agreement was essentially correct and that he was prepared to proceed with his

guilty plea. Id. at 26, 29-30. At the conclusion of the hearing, the court

determined that Mr. Beasley was fully competent, that the plea was voluntary, and

that the plea was supported by the facts. Id. at 32. The court then deferred

acceptance of the plea until the presentence investigation report was prepared. Id.

In October 1995, Mr. Beasley requested and was appointed new counsel,

and the next month he filed a motion to withdraw his plea pursuant to Fed. R.

Crim. P. 32(d).2 Mr. Beasley did not, nor does he now, contend that any part of

the required Rule 11 colloquy was deficient. Instead, he alleged that his plea was

not voluntary because he had been pressured by his counsel and had received

ineffective assistance of counsel and that his counsel had incorrectly advised him

of the probable sentence range, constituting a fair and just reason for withdrawal. 

In December 1995, after a hearing, the district court denied the motion, and then,

in March 1997, sentenced Mr. Beasley to 360 months’ imprisonment. 
-6-

On appeal, Mr. Beasley asserts that because he was allegedly misled as to

the sentence he would receive, the record below established a “fair and just

reason” for withdrawal of his plea. In the alternative, he urges this court to adopt

a rule whereby a defendant may withdraw a guilty plea at any time, and for any

reason, prior to the district court’s acceptance of that plea.

II. DISCUSSION

A.

As indicated above, Mr. Beasley does not argue that Rule 11 was violated

in any respect, and he does not directly pursue the argument that he made in the

district court that his plea was not intelligently and voluntarily entered. Rather,

he asserts that he is entitled to withdrawal of his plea pursuant to the provisions

of Fed. R. Crim. P. 32(e).

Rule 32(e) of the Federal Rules of Criminal Procedure provides that a

district court may allow a defendant to withdraw his or her guilty plea before

sentencing if he or she “shows any fair and just reason.” Fed. R. Crim. P. 32(e). 

The defendant bears the burden of demonstrating a fair and just reason, based on

the following considerations: “(1) defendant’s assertion of innocence; (2)

resulting prejudice to the government; (3) defendant’s delay in filing the

withdrawal motion; (4) inconvenience to the court; (5) defendant’s assistance of
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counsel; (6) knowledge and voluntariness of the plea; and (7) resulting waste of

judicial resources.” United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997). 

The reason Mr. Beasley offers to justify withdrawal of his plea is that he

was allegedly misled as to the potential sentencing consequences of his guilty

plea (the functional equivalent to arguing an involuntary and unknowing plea). In

particular, Mr. Beasley testified at the withdrawal hearing that his counsel had

advised him that his criminal history category would probably be two or three and

that he would probably receive a sentence of 135 months if he pled guilty and

then cooperated with the government. R. Vol. 12 at 4-5. He testified that “now

the presentence report says I’m a Category 5, and it’s 292 months to 360 months.” 

Id. He further testified,

[I]f I would have knew [sic] the day that I signed this plea

agreement, I would never in my life pleaded to no 360 months, if I

would have known that this was the case, which I was led to believe

that when I signed the plea agreement, I was signing the plea

agreement for ten years with cooperation with the government. . . .

That was the only purpose that I signed that plea agreement. If I

would have known that I would be looking at a life term at my age of

36, I would have never signed that plea agreement, never.

Id. at 5.

It is apparent from the record, however, that both the plea agreement and

the court clearly informed Mr. Beasley, prior to pleading guilty, what the

sentencing range for this count would be. See R. Vol. 2, Tab 31 at 7; R. Vol. 9 at

14. The sentence he received was within that range. Mr. Beasley’s real argument
3We also acknowledge Mr. Beasley’s four-month delay in moving to withdraw his

plea. As we commented in United States v. Vidakovich, 911 F.2d 435 (10th Cir. 1990):

A swift change of heart is itself strong indication that the plea was entered into in

haste and confusion; furthermore, withdrawal shortly after the event will rarely

prejudice the Government’s legitimate interests. By contrast, if the defendant has

long delayed his withdrawal motion, and has had the full benefit of competent

counsel at all times, the reasons given to support withdrawal must have

considerably more force.

Id. at 439-40 (quoting United States v. Barker, 514 F.2d 208, 222 (D.C. Cir. 1975)); see

also United States v. Carr, 80 F.3d 413, 420 (10th Cir. 1996). Here, Mr. Beasley’s

arguments do not have that force.

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with his guilty plea is not that the court or counsel failed to advise him as to the

potential sentencing range, but that the sentence actually imposed is longer than

he had hoped it would be.

A defendant’s dissatisfaction with the length of his sentence generally is

insufficient reason to withdraw a plea. United States v. Elias, 937 F.2d 1514,

1520 (10th Cir. 1991); Miles v. United States, 385 F.2d 541, 543-44 (10th Cir.

1967). Furthermore, although the general rule is that motions to withdraw guilty

pleas before sentencing are to be freely allowed and treated with liberality, the

decision is nevertheless within the sound discretion of the trial court, and we will

not reverse absent a showing that the court acted “unjustly or unfairly.” Graves,

106 F.3d at 343 (citation omitted). That is not the case here.3

B.
4

In his brief, Mr. Beasley asserts that in addition to the Ninth circuit, the First,

Fifth, and Eighth circuits have also adopted the rule that a court must permit withdrawal

of a guilty plea for any reason prior to the court’s acceptance of that plea. See

Appellant’s Am. Br. at 5; see, e.g., United States v. Papaleo, 853 F.2d 16, 19 (1st Cir.

1988); United States v. Molina-Iguado, 894 F.2d 1452, 1456 (5th Cir. 1990); United

States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980); United States v. Walker, 927 F.2d

389, 390 (8th Cir. 1991); United States v. McGovern, 822 F.2d 739, 744 (8th Cir. 1987). 

However, these cases are all pre-Hyde and are all distinguishable.

-9-

Mr. Beasley separately argues that this court should adopt the rule that a

guilty plea may be withdrawn at any time and for any reason, where, as here, the

motion for withdrawal is made prior to the district court’s acceptance of that plea. 

Appellant’s Am. Br. at 4-5. In support of his argument, he cites United States v.

Hyde, 92 F.3d 779 (9th Cir. 1996), which, as he acknowledges in his brief, was

reversed by the Supreme Court.4

 See Appellant’s Am. Br. at 5; United States v.

Hyde, 117 S. Ct. 1630 (1997).

In Hyde, the Court held that a defendant who moves to withdraw a guilty

plea after the plea had been accepted but before acceptance of the plea agreement

must show a fair and just reason for doing so. Id. at 1633-35. Mr. Beasley

attempts to distinguish Hyde on the grounds that it does not address the issue of

withdrawal where the defendant has tendered the plea but the district court has

not yet accepted it. He cites no other authority which directly supports this view,

and we are unpersuaded. The requirements for taking and withdrawing guilty

pleas are fully encompassed in Rules 11 and 32 and the case law construing those
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rules, and we are disinclined to graft the contract principles of offer and

acceptance into those requirements.

III. CONCLUSION

For the reasons stated above, the judgement of the district court is

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge