United States Court of Appeals

For the Eighth Circuit

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No. 14-3170

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jimmy Dale Graham

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: May 7, 2015

Filed: May 12, 2015

[Unpublished]

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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Jimmy Dale Graham directly appeals the judgment imposed by the district

court1

 after he pleaded guilty to a reduced charge of using interstate facilities to

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri.
transmit information about a minor, in violation of 18 U.S.C. § 2425. In a brief filed

under Anders v. California, 386 U.S. 738 (1967), counsel argues that Graham’s plea

was involuntary because he was misinformed about the applicable supervised-release

range; and the court violated due process and Federal Rule of Criminal Procedure

11(c)(1) by participating in plea negotiations at the first sentencing hearing.

After careful review, we reject the challenge to Graham’s plea, as the record

does not establish a reasonable probability that, but for his misunderstanding of the

supervised-release range, he would not have pleaded guilty. See Fed. R. Crim. P.

52(a) (error that does not affect substantial rights must be disregarded); United States

v. Todd, 521 F.3d 891, 896 (8th Cir. 2008) (Rule 11 error affects substantial rights

only where defendant shows reasonable probability that but for error he would not

have pleaded guilty). Graham was informed of the correct supervised-release range

prior to sentencing and did not move to withdraw his plea, even after new counsel was

appointed; he did not assert, in the district court or on appeal, that he would have

proceeded to trial if the plea hearing had fully complied with Rule 11; and he received

a substantial benefit from the plea bargain in the form of a reduced charge with a

much lower sentencing range. See Todd, 521 F.3d at 895-97 (defendant did not show

reasonable probability that but for Rule 11 errors he would not have pleaded guilty,

as he did not move to withdraw plea in district court when he learned of those errors,

and he did not assert on appeal that he would have proceeded to trial if plea hearing

had fully complied with Rule 11). Further, the district court’s comments at the first

sentencing hearing did not constitute impermissible participation in plea negotiations,

as the court merely ensured that Graham understood the potential consequences of

withdrawing his plea, and the court did not negotiate any terms of the agreement or

give an opinion as to the strength of the government’s case. See United States v.

Thompson, 770 F.3d 689, 695-96 (8th Cir. 2014) (district court’s comparison of

sentence defendant faced if he went to trial with sentence if he pleaded guilty,

standing alone, is not improper participation in plea negotiations). An independent

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review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), reveals no

nonfrivolous issues for appeal.

The judgment is affirmed. Counsel’s motion to withdraw is granted, subject to

counsel informing appellant about the procedures for seeking rehearing from this

court and for filing a petition for writ of certiorari.

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