United States Court of Appeals

For the Eighth Circuit

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No. 12-3415

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jeremy Dionne Norvell

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: June 14, 2013

 Filed: September 3, 2013

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Before LOKEN, BRIGHT, and BYE, Circuit Judges.

____________

BYE, Circuit Judge.

Jeremy Norvell pleaded guilty to conspiracy to distribute oxycodone,

oxymorphone, cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), and 846. He moved to withdraw his guilty plea, contending it was not

knowing, intelligent, and voluntary because, most significantly, of his

misunderstanding that he was guaranteed the ability to attend Minnesota Teen

Challenge, a long-term, faith-based chemical dependency program, before the district
court sentenced him. He also alleged his counsel provided ineffective assistance

during plea negotiations. The district court1

 denied his motion and Norvell appeals.

We affirm.

I

Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") agents learned

from cooperating individuals that Norvell dealt drugs in Duluth, Minnesota. 

Authorities conducted several "controlled buys" of Opana, a brand name of

oxymorphone, a powerful opioid analgesic. They obtained a search warrant and

executed it at Norvell's house, during which time he unsuccessfully tried to escape in

his car and struck a police vehicle. Agents recovered 343 forty-milligram Opana pills,

as well as cash and marijuana.

Lengthy plea negotiations followed. The government offered its first plea deal

to Norvell in October 2011. The deal required Norvell to agree to a reckless

endangerment enhancement for striking the police vehicle, as well as the government's

position Norvell could be a career offender based upon his two prior convictions for

vehicular flight from a police officer. See Presentence Investigation Report (PSR) 11-

12. Norvell declined the deal.

The government extended a second plea offer on November 16, 2011. After

Norvell had declined the first plea deal, Kevin Cornwell, Norvell's attorney,

discovered one of the vehicular flight convictions was classified as a gross

misdemeanor, and therefore Norvell did not qualify as a career offender. A

disagreement persisted over Norvell's criminal history category. The government

believed it was VI; Norvell thought it was lower. Norvell's attorney warned him of

1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

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the likelihood the government would pursue drug conspiracy charges, and thus

attribute greater drug quantities and harsher penalties to Norvell, if he refused the plea

deal. Norvell did just that.

The government responded by filing a Second Superseding Indictment, which

added a charge of conspiracy to distribute oxycodone, oxymorphone, cocaine, and

marijuana, charges for six specific acts of oxymorphone distribution, and a charge of

possession with intent to distribute cocaine. The government also provided notice it

intended to rely on Norvell's 1997 conviction for cocaine possession to enhance the

applicable statutory maximum penalties for each count from twenty to thirty years. 

21 U.S.C. §§ 841, 851.

Plea discussions continued. Norvell attended a reverse proffer session, at which

time the government made a third offer, which required Norvell to plead guilty to the

conspiracy charge. Norvell and Cornwell met privately following the government's

presentation. At that time, Cornwell received an email stating Norvell had been

accepted into Minnesota Teen Challenge, a highly-structured, faith-based program for

people with chemical dependancy challenges. Criminal defendants sometimes attend

Teen Challenge between their guilty plea and sentencing, and upon successful

completion of the program, may receive lighter sentences. Norvell expressed a strong

desire to attend Teen Challenge. Norvell and Cornwell concluded their meeting. Two

U.S. Marshals Special Agents ("SA"), Nicholas Garlie and Kylie Williamson, escorted

Norvell back to a holding area. Norvell voiced his desire to attend Teen Challenge to

the SAs. According to Norvell, Garlie and Williamson told him he would have to

plead guilty to attend Teen Challenge. The SAs disputed that assertion in sworn

testimony.

Norvell pleaded guilty to the conspiracy count. The court, government counsel,

and Cornwell engaged in a lengthy colloquy to ensure Norvell's plea was knowing,

intelligent, and voluntary, and that it was supported by a sufficient factual basis. 

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Norvell affirmed he had read and understood the entire agreement. He acknowledged

the court would ultimately determine his criminal history category. He stated his

attorney had "done a wonderful job" and government counsel "did a good job of

explaining everything for [him]." Plea Hr'g Tr. 4. He also outlined the factual basis

for his plea. He admitted he possessed over 800 forty-milligram Opana pills during

2011 and participated in each of the "controlled buys."

The court then conducted its own inquiry, during which time it had the

following exchange with Norvell:

The Court: On the other side of that, has anyone made promises to you

about what's going to happen other than the promises in the plea

agreement?

Norvell: Just I was going to get an opportunity to go to Teen Challenge

before my sentencing[.]

Id. 32. After inquiring further regarding the content of Teen Challenge and the

government's position regarding Norvell's participation in the program, the court

reminded Norvell that it had the final word with regard to Teen Challenge and

Norvell's sentence:

The Court: I want to just make sure you understand and we all

understand what's happening, but [Teen Challenge is] not part of your

sentence itself. And it may be included as part of what you do as a

program, but you still got to get sentenced by the Court as to what

happens here. Correct?

Norvell: Yes, sir.

The Court: Okay. And that's what you understand?

Norvell: Yes, sir.

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Id. 33-34. At the conclusion of the hearing, Norvell entered a formal guilty plea.

Approximately one month later, Norvell filed a motion to modify his order of

detention to participate in Teen Challenge. The district court denied the motion,

reasoning that 18 U.S.C. § 3145(c), the governing statute, permitted the court to

modify Norvell's detention order only if Norvell demonstrated "exceptional reasons

why [his] detention would not be appropriate." Although laudable, the desire to seek

treatment and rehabilitate oneself is not "'clearly out of the ordinary, uncommon, or

rare.'" Order Re: Mot. to Modify Detention Order 2 (quoting United States v. Larue,

478 F.3d 924, 926 (8th Cir. 2007) (per curiam)).

Through new counsel,2

 Norvell moved to withdraw his guilty plea. The court

denied the motion. Norvell renewed his request and the parties agreed to an

evidentiary hearing, at which Norvell testified on his own behalf. He claimed he

understood the court's statement Teen Challenge was not "part of" his sentence to

mean he was guaranteed a place in Teen Challenge, but his ultimate sentence would

depend on his performance in the program. He reiterated his belief STAFF

ATTORNEY Garlie told him he would have to plead guilty to attend Teen Challenge. 

He also stated had Cornwell correctly advised him of his criminal history category,

he would have taken the government's first plea deal, which did not include the

conspiracy charge.

Cornwell testified as well. He conceded he had incorrectly calculated Norvell's

criminal history category by not discovering Norvell's career offender status prior to

the time Norvell declined the first plea deal, about which Cornwell felt "terrible." 

Mot. Hr'g Tr. 158. But he also affirmed that "any time [they] talked about the plea

agreement," he reminded Norvell it was ultimately up to the court to calculate criminal

history. Id. 123. He said the same thing with respect to Teen Challenge. Id. 141. 

2

The court had granted Cornwell's motion to withdraw ten days earlier.

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Garlie and Williamson also refuted Norvell's testimony accusing them of stating a

guilty plea was a precondition to attend Teen Challenge.

The district court denied Norvell's motion to withdraw his guilty plea. The

court calculated Norvell's offense level at 32 and his criminal history category at III. 

This produced a guidelines range of 151 to 188 months. The court sentenced Norvell

to 188 months, the top of the range. Norvell then filed this timely appeal.

II

Norvell makes two arguments. First, he claims the district court abused its

discretion by denying his motion to withdraw his guilty plea. Second, he claims

Cornwell provided ineffective assistance during plea negotiations.

A. Guilty Plea

Norvell argues the district court erred by denying his motion to withdraw for

three reasons: (1) his misunderstanding regarding Teen Challenge; (2) the insufficient

factual basis supporting his plea; and (3) other facts and circumstances.

We review the district court's denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Cruz, 643 F.3d 639, 641 (8th Cir. 2011). A

defendant may withdraw a guilty plea that has been accepted by the court if he

demonstrates "a fair and just reason for requesting the withdrawal." Fed. R. Crim. P.

11(d)(2)(B). The defendant bears the burden of showing such a reason. Cruz, 643

F.3d at 642. Moreover,

[e]ven if such a fair and just reason exists, before granting the motion a

court must consider "whether the defendant asserts his innocence of the

charge, the length of time between the guilty plea and the motion to

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withdraw it, and whether the government will be prejudiced if the court

grants the motion."

United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006) (quoting

United States v. Nichols, 982 F.2d 1199, 1201 (8th Cir. 1993)). If the defendant does

not demonstrate fair and just grounds, the court need not consider these additional

factors. United States v. Wicker, 80 F.3d 263, 266 (8th Cir. 1996) (quotation and

citation omitted).

1. Teen Challenge

Norvell reasserts the same explanation for his misunderstanding that he offered

at the evidentiary hearing. In short, he believed his place at Teen Challenge was set

in stone, but he had to perform well to receive a shorter sentence. Had he understood

his attendance was not guaranteed, he would not have pleaded guilty. Moreover, he

claims his "certain" success in Teen Challenge would, at a minimum, "have supported

a request for a substantial downward variance." Appellant's Br. 27; see United States

v. Shy, 538 F.3d 933, 938 (8th Cir. 2008) (affirming a substantial downward variance

following genuine rehabilitation). Putting these pieces together, Norvell's plea was

not knowing, intelligent, and voluntary, and the district court's error could have been

prejudicial.

We think otherwise. First, it is undisputed the court told Norvell Teen

Challenge was not a guaranteed part of Norvell's sentence, but rather that Teen

Challenge "may be included as part of what you do . . . ." Plea Hr'g Tr. 20, 33

(emphasis added). Counsel for the Government explained that Teen Challenge was

"not part of the government's offer or the agreement itself." Plea Hr'g Tr. 33. 

Norvell's own attorney informed him that Teen Challenge was not a part of the plea

agreement, and, as such, his attendance in the program was not guaranteed. Mot. Hr'g

Tr. 136, 140-41; Cornwell Aff. ¶ 23, Appellant's App. 188a ("Most pointedly, I made

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it clear to [Norvell] during our discussions that I felt his placement in Teen Challenge

was an uphill battle . . . ."). Second, the plea agreement contains an "integration

clause" indicating it is the "entire agreement" between the parties and "[t]here [were]

no other agreements, promises, representations, or understandings." Plea Agr. 8,

Appellant's App. 113a. Norvell confirmed this fact. Plea Hr'g Tr. 20. An integration

clause "normally prevents a criminal defendant[] who has entered into a plea

agreement[] from asserting that the government made oral promises to him not

contained in the plea agreement itself." United States v. Leach, 562 F.3d 930, 936

(8th Cir. 2009) (internal quotation and citation omitted). Norvell provides no

explanation why that prohibition should not operate here. Third, nothing other than

Norvell's own recollection—contradicted by the SAs, two sworn law enforcement

officers—supports Norvell's assertion he was told he must plead guilty to attend Teen

Challenge. The district court found Norvell's testimony lacked credibility, and it is 

in a better position to assess credibility than we are. United States v. Newson, 46 F.3d

730, 733 (8th Cir. 1995). While the plea record may show a gap in the explanation of

the sentencing process as it relates to Teen Challenge–the district court never directly

said that Teen Challenge was not a part of the plea agreement, just not a part of the

sentence–the order denying Norvell's motion to withdraw should be affirmed. As

discussed, the district court did not find Norvell credible and determined that Norvell

was not guaranteed an opportunity to attend Teen Challenge as a part of, or in return

for accepting, the plea agreement. As such, Norvell's alleged misunderstanding does

not permit withdrawal.

2. Factual Basis

Norvell contends the factual basis established at the plea hearing does not

support his guilty plea. Although Norvell admitted distributing drugs, he claims the

facts do not establish he conspired to distribute drugs.

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Federal Rule of Criminal Procedure 11(b)(3) provides, "[b]efore entering

judgment on a guilty plea, the court must determine that there is a factual basis for the

plea." "A guilty plea is supported by an adequate factual basis when the record

contains 'sufficient evidence at the time of the plea upon which a court may

reasonably determine that the defendant likely committed the offense.'" United States

v. Cheney, 571 F.3d 764, 769 (8th Cir. 2009) (quoting United States v. Gamble, 327

F.3d 662, 664 (8th Cir. 2003)). "[F]acts gathered from the prosecutor's summarization

of the plea agreement and the language of the plea agreement itself, a colloquy

between the defendant and the district court, and the stipulated facts before the district

court, are sufficient to find a factual basis for a guilty plea." United States v. Brown,

331 F.3d 591, 595 (8th Cir. 2003) (citations omitted). The court "may also consider

facts set forth in the presentence report to determine whether there was a sufficient

factual basis for the plea." United States v. Christenson, 653 F.3d 697, 700 (8th Cir.

2011).

The record and PSR amply support a determination Norvell likely committed

the offense. At the plea hearing, Norvell articulated a factual predicate for the

conspiracy charge and confirmed that he obtained Opana from his "co-conspirator

sources of supply." Plea Hr'g Tr. 27. Further, an "unindicted individual" facilitated

three "controlled buys" from Norvell at his residence by setting up the deals and

accompanying the cooperating individual to Norvell's apartment. PSR 3. Michael

Taylor, Norvell's roommate, also admitted he obtained marijuana from Norvell and

helped him sell Opana pills on a few occasions. Id. 4. These facts provide a sufficient

basis for the district court to determine Norvell (1) agreed, with at least one other

person, to distribute controlled substances; (2) voluntarily and intentionally joined the

agreement; and (3) knew the essential purpose of the agreement at the time he joined. 

See United States v. Meeks, 639 F.3d 522, 527 (8th Cir. 2011) (listing elements of

conspiracy); United States v. Brown, 414 F.3d 976, 977 (8th Cir. 2005) ("Evidence

of an express agreement is not required for a conspiracy conviction."). We find no

infirmity in the district court's conclusion.

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3. Other Factors

Norvell sets forth three additional reasons why the district court should have 

let him withdraw: (1) he was given very little time to review the plea agreement

before pleading guilty; (2) Cornwell misadvised him about his criminal history

category; and (3) he promptly moved to withdraw, and granting the motion would not

prejudice the government.

We find these arguments meritless. Norvell expressly stated he felt he had

enough time to read and consider the plea agreement. Plea Hr'g Tr. 4. Government

counsel also went through the agreement with Norvell paragraph by paragraph at the

plea hearing. Id. 10-20. As for the criminal history calculation, we recently reiterated

that defense counsel's incorrect calculation of a defendant's criminal history category

does not provide a basis for withdrawing a guilty plea:

A defendant may not withdraw a guilty plea . . . merely because he

misunderstands how the sentencing guidelines will apply to his case. So

long as the district court tells a defendant the statutory range of

punishment that he faces and informs him that the sentencing guidelines

will be used in determining the ultimate sentence, the plea is binding. 

This is true even where the misunderstanding is caused by defense

counsel's erroneous estimation of what the ultimate sentence will be.

United States v. Thomas, 705 F.3d 832, 834 (8th Cir. 2013) (per curiam) (quoting

Ramirez-Hernandez, 449 F.3d at 826). Finally, the court only considers prejudice to

the government after the defendant has provided a fair and just reason for withdrawal. 

Wicker, 80 F.3d at 206 (quotation and citation omitted). Norvell has not done that. 

We therefore need not, and do not, consider prejudice.

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B. Ineffective Assistance3

Norvell claims Cornwell provided him ineffective assistance during plea

negotiations. He claims Cornwell's incorrect criminal history calculation discouraged

him from accepting the November plea agreement, which would have produced an

advisory guidelines range of 70-108 months, depending on the resolution of the

reckless endangerment enhancement. He also contends the Supreme Court's recent

decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012), provides an additional reason

why he should be allowed to withdraw his plea.

Defendants have a Sixth Amendment right to counsel, and that right exists

during the plea bargaining process. Padilla v. Kentucky, 130 S. Ct. 1473, 1486

(2010). We review claims of ineffective assistance of counsel de novo and review the

district court's underlying factual findings for clear error. United States v. TinajeroOrtiz, 635 F.3d 1100, 1103 (8th Cir. 2011). "Defense counsel's performance can serve

as the requisite 'fair and just reason' for withdrawal only if [the defendant]

demonstrates both that his attorney's performance was deficient and that he was

prejudiced by it." United States v. McMullen, 86 F.3d 135, 137 (8th Cir. 1996); Hill

v. Lockhart, 474 U.S. 52, 58 (1985) ("[T]he two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel." (citing

Strickland v. Washington, 466 U.S. 668 (1984))). To establish deficient performance,

the defendant must show his counsel's "representation fell below an objective standard

of reasonableness." Strickland, 466 U.S. at 688. To show prejudice, the defendant

3

"Ineffective assistance of counsel claims . . . are generally not reviewed on

direct appeal unless the district court has developed a record on the issue." United

States v. Russell, 132 F. App'x 670, 671 (8th Cir. 2005) (per curiam) (unpublished). 

Here, the district court did indeed develop a record. Therefore, the ineffective

assistance matter is appropriately before us. The parties do not dispute this matter. 

Appellee's Br. 54 n.13 ("The United States agrees with Norvell's position that direct

review of his ineffective assistance claim is proper given the record generated in the

district court.").

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must establish that "he would have accepted the plea but for counsel's advice, and that

had he done so he would have received a lesser sentence." Wanatee v. Ault, 259 F.3d

700, 704 (8th Cir. 2001); see Lafler, 132 S. Ct. at 1385.

Norvell's arguments are unpersuasive. Thomas, discussed above, applies here

as well; defense counsel's inaccurate criminal history calculation does not provide a

basis to withdraw a guilty plea. Thomas, 705 F.3d at 834 (quotation and citation

omitted). Nor does Lafler help. In Lafler, the Supreme Court concluded an attorney

who incorrectly informed the defendant of a legal rule and improperly advised his

client to reject a plea offer based on that rule provided ineffective assistance. 132

S. Ct. at 1383-88. Yet here, Cornwell advised Norvell not to reject the November

2011 plea offer, but to accept it. Cornwell Aff. ¶ 11, Appellant's App. 183a ("It was

my advice to the Defendant that he should accept the government's offer for a guilty

plea to a possession charge."). He did so because if Norvell refused the plea deal, the

government would—and eventually did—charge him with conspiracy and hold him

accountable for greater drug quantities. Cornwell's performance does not violate

Lafler.

Finally, we observe Norvell did not object to Cornwell's allegedly deficient

performance at his Rule 11 hearing. A defendant's "failure to assert any objections to

his counsel's performance at the change-of-plea hearing, despite his knowledge of the

availability of a defense, refutes any claim of ineffective assistance of counsel as a

basis for withdrawing his plea." United States v. Murphy, 572 F.3d 563, 569 (8th Cir.

2009) (internal quotations and citations omitted). Norvell testified during the plea

hearing that Cornwell had "done a wonderful job." Plea Hr'g Tr. 4. Later during the

hearing, when asked if Cornwell had done everything Norvell expected of him,

Norvell replied, "You've done an excellent job, sir." Id. 31. Norvell's failure to object

to—indeed, his praise of—Cornwell's performance precludes his ineffective assistance

claim.

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III

Norvell has not demonstrated a "fair and just reason" for requesting the

withdraw of his guilty plea. The district court did not abuse its discretion when it

denied Norvell's motion. We affirm.

BRIGHT, Circuit Judge, dissenting.

I dissent. It is a basic rule of law in the federal courts that a plea of guilty must

be knowing, intelligent, and voluntarily made. All parties, including the prosecutor,

defense counsel, and judge, should strive to ensure that defendants understand the

terms and consequences of guilty pleas. The issue in this case is not whether promises

were made to Norvell. The issue is whether Norvell realized that despite acceptance

into the Teen Challenge program, the arrangement might or might not be approved by

the court. I conclude that the fact that the court might reject Teen Challenge was

never fully explained to Norvell. Thus the plea of guilty was not knowingly and

intelligently made and it should be set aside.

The most relevant evidence on this issue is contained in the record of the

change of plea hearing and is reproduced below:

The Court: But has anybody, and when I say “anybody,” I mean

anybody, including your own counsel or the prosecution or any of the

agents or anyone done anything to force you to come here to plead guilty

today?

Norvell: Nobody forced me to, no, sir.

The Court: So you are here on your own?

Norvell: I am, sir.

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The Court: Okay. On the other side of that, has anyone made promises

to you about what’s going to happen other than the promises in the plea

agreement?

Norvell: Just that I was going to get an opportunity to go to Teen

Challenge before my sentencing?

The Court: I don’t know. [Government counsel], do you want to

address that? I’m not sure what it is.

Government counsel: Your Honor, I know the defendant has enrolled or

attempted to enroll in Minnesota Teen Challenge. And from that

perspective, it’s not part of the government’s offer or the agreement

itself, although I have made clear to [defense counsel] and to the

defendant that I’m not going to object if there becomes—if he presents

a motion saying I’ve made it into Teen Challenge, and he’s accepted into

the program. It follows the course of conduct in this related

investigation when it comes to people who are trying to better

themselves before sentencing.

The Court: Okay. And my recollection, I’ve had a couple of folks who

have done that. Oftentimes, it’s kind of a diversion program, is it not?

Government counsel: I don’t know. ...from what I understand, it is, the

goal is to try to interdict drug problems and difficulty. 

The Court: Yes, and it’s like another treatment program. Is that how

you see it, Mr. Norvell?

Norvell: Yes, sir.

The Court: But if I remember correctly, and I want to just make sure you

understand and we all understand what’s happening, but that’s not part

of your sentence itself. And it may be included as part of what you do

as a program, but you still got to get sentenced by the Court as to what

happens here. Correct?

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Norvell: Yes, sir. 

The Court: Okay. And that’s what you understand?

Norvell: Yes, sir. 

Plea Hr’g Tr. 32-34.4

Norvell may well have understood that he would get an opportunity to attend

Teen Challenge before his sentencing. Despite efforts by the district court and

government counsel to clarify how Teen Challenge related to the plea agreement, the

colloquy did nothing to disabuse Norvell of the notion that Teen Challenge was part

and parcel of his guilty plea. The prosecutor explained that Teen Challenge was “not

a part of the government’s offer or the agreement itself,” but went on to state that the

government would not object to a motion to attend Teen Challenge. The district court

judge also attempted to ensure that Norvell understood the status of Teen Challenge,

by telling him it was “not a part of [the] sentence itself.” But the judge went on to

state that Teen Challenge “may be included as a part of what you do as a program.”

The rule that pleas must be knowing, intelligent, and voluntary means nothing

if the contents of plea agreements are not explained in a way defendants can

understand. The judge and the prosecutor may have understood that Norvell might

not be allowed to attend Teen Challenge. A lawyer who reads the record might

understand that fact from language like “it’s not a part of the government’s offer or

the agreement itself,” and “you still [have] to get sentenced by the court.” But neither

Norvell nor any similarly situated defendant would have such an understanding. No

4

The reader will observe that the majority opinion, at pages 7 and 8, dilutes the

importance of the above colloquy among the defendant, the prosecutor, and the judge,

by referring to testimony given by both sides at the later motion hearing. But at its

conclusion, on page 8, the majority concedes "the plea record may show a gap." 

Indeed, it's quite a gap.

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one told him, in clear terms, “You may or may not be able to attend Teen Challenge. 

It is not guaranteed.” I emphasize that the prosecutor told Norvell the government

would not object to his participation in Teen Challenge and the court told him Teen

Challenge may be included as part of a program.

If someone had informed Norvell at the change of plea hearing, in clear terms,

that his ability to participate in Teen Challenge was questionable, his sentencing

options would have looked much different. He may well have not agreed to plead

guilty. Indeed, had it been disclosed that the court could deny Norvell the opportunity

to attend Teen Challenge, the record would look much different.

Guilty pleas play a very important role in our criminal justice system. 

Unfortunately, the process by which district courts approve guilty pleas is often rote. 

Plea bargains are sometimes fair, and maybe sometimes not so fair. Nonetheless, all

the participants—lawyers as well as judges—must bear in mind that the purpose of

a hearing on a guilty plea is to ensure the defendant knows what he is agreeing to. 

The Rule 11 colloquy is not merely a series of questions to be answered in the

affirmative. It is designed to ensure knowing, intelligent, and voluntary pleas. 

Extreme care must be taken to make sure that defendants have no misunderstandings

about the effect of a guilty plea. This plea record shows a gap in the explanation of

the sentence as it related to Teen Challenge. In my view the plea of guilty should be

set aside and the case remanded for further proceedings.

______________________________

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