United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1103

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Ronnie C. Gaines, *

* [UNPUBLISHED]

Appellant. * 

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Submitted: October 25, 2005

Filed: July 5, 2006

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Before MELLOY, LAY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Ronnie C. Gaines was charged with two counts of possession of a controlled

substance with intent to distribute and two counts of assaulting law enforcement

officers. He challenges the district court’s denial of his motion to withdraw his guilty

plea, and he argues that he is entitled to a new sentencing hearing. We affirm.

Gaines pled guilty pursuant to a plea agreement, and the agreement

contemplated a base offense level of 26 under then-mandatory sentencing guidelines.

The agreement noted that Gaines had accepted responsibility in a timely fashion, and

that the government believed he was entitled to a three-level reduction pursuant to
1

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

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USSG § 3E1.1, subject to his conforming to the conditions of pretrial release and “not

otherwise violating any terms or conditions of this plea agreement.” The agreement

also specified that the guidelines computation set forth in the agreement “does not

bind the Court or the United States Probation Office with respect to the appropriate

Guideline levels.” (App. at A7) (emphasis in original).

Prior to sentencing, defense counsel informed Gaines that the base offense level

in his plea agreement did not take into account his prior convictions and several

enhancements, and counsel moved to withdraw from representing Gaines. Gaines

then sought to withdraw his guilty plea and proceed to trial, arguing that his counsel

had not properly advised him of the agreement’s contents. He asserted that the

allegations in the indictment were not true, and that he was innocent. (Hr’g Tr. at 7,

36). After a hearing, the district court1

 found no fair and just reason to withdraw the

guilty plea. The court observed that “I specifically asked you and had you agree that

you understood that once I accepted your guilty plea, you could not later withdraw it

because you didn’t like the sentence that you were going to get.” (Id. at 38). Noting

that “it looks to me like this is all about sentence,” the court denied the motion to

withdraw. The court eventually sentenced Gaines to 210 months’ imprisonment. 

Gaines’s current counsel moved to withdraw and filed a brief under Anders v.

California, 386 U.S. 738 (1967), arguing that the district court abused its discretion

in denying Gaines’s motion to withdraw his plea. Gaines also filed a supplemental

pro se brief arguing that all three of his attorneys have provided ineffective assistance

of counsel, and that the government breached his plea agreement by failing to

recommend a three-level reduction for acceptance of responsibility. We denied

counsel’s motion to withdraw, and requested supplemental briefs from the parties

addressing the claim that the government breached the plea agreement and the
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reasonableness of the sentence in light of United States v. Booker, 543 U.S. 220

(2005).

We first conclude that the district court did not abuse its discretion in denying

Gaines’s motion to withdraw his guilty plea. To show a “fair and just reason” for

withdrawal, a defendant must establish a reasonable probability that, but for counsel’s

alleged errors, he would not have pleaded guilty. United States v. McMullen, 86 F.3d

135, 137 (8th Cir. 1996). The district court found that Gaines was fully apprised that

he could not withdraw his plea if he disliked the sentence to be imposed, and that he

was not prejudiced by any failure of his counsel at his plea hearing. The court’s

finding that Gaines’s change of heart was “all about sentence,” and that he was not

prejudiced by any lack of notice, was not clearly erroneous.

Nor are we persuaded by Gaines’s argument that he is entitled to resentencing

because the government breached the plea agreement by recommending a two-level

reduction for acceptance of responsibility, rather than the three-level reduction

contemplated by his plea agreement. Gaines did not allege a breach of the plea

agreement at sentencing, restate the terms of the agreement in open court, or move to

withdraw his plea based on the alleged breach. Under our precedent, the failure to take

any of these actions constitutes a waiver. United States v. Cohen, 60 F.3d 460, 462-63

(8th Cir. 1995) (holding that defendant had “waived any objection to the

government’s failure to make the recommendation it had provided,” and concluding

that “[i]t would be unfair to permit Cohen to sit idly by at the time of sentencing,

when by exercising any one of the courses of action open to him he could have

obtained a clarification and correction of the government’s position, and now seek a

remand for that very same purpose.”).

Even assuming there was no waiver, the matter of an alleged breach was not

properly preserved, and we would review the claim only for plain error. United States

v. Olano, 507 U.S. 725, 735-36 (1993). To gain relief under that standard, a defendant
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must show that the district court committed an error, that the error was obvious, and

that the error affected the defendant’s substantial rights. Id. at 732. Even then, a court

of appeals should exercise its discretion to correct the error only when it “‘seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id.

(quoting United States v. Young, 470 U.S. 1, 15 (1985)) (alteration in original).

We acknowledge a substantial argument that the government’s advocacy at

sentencing was inconsistent with the plea agreement. The government agreed to file

a written motion “setting forth the reasons why the United States believes defendant

is entitled to a three point reduction for acceptance of responsibility,” subject only to

“defendant abiding by all conditions of his pretrial release and defendant not

otherwise violating any terms or conditions of [the] plea agreement.” (App. at A7).

The government contends that Gaines violated the terms or conditions of his plea

agreement by attempting to withdraw his guilty plea. But Gaines ultimately did not

withdraw his plea, and at the time of his sentencing hearing, Gaines was in compliance

with the provisions of his plea agreement that called for him to plead guilty. The

government could have drafted the agreement differently, to provide, for example, that

its obligations were contingent on Gaines “exhibit[ing] conduct consistent with the

acceptance of responsibility,” United States v. Adams, 197 F.3d 1221, 1222 (8th Cir.

1999) (per curiam), but it failed to do so. As drafted, the plea agreement in this case

limits more narrowly the conditions under which the government reserved the right

to change its position on acceptance of responsibility, and it is difficult for the

government to show that Gaines breached the agreement by making an unsuccessful

attempt to withdraw his plea. We may assume, therefore, that there was “error” in the

sentencing proceeding.

Under plain error review, however, Gaines must establish more than a breach

of the plea agreement. We are doubtful that any error here should be characterized as

“obvious,” given the close textual analysis required to reach a conclusion that there

was a breach of the agreement. But even assuming that criterion were satisfied,
2

See also United States v. Worth, 152 F. App’x 549, 551 (8th Cir. 2005) (per

curiam) (upholding denial of third-level adjustment where, “although the government

stated that it had not undertaken trial preparation, the court’s allocation of resources

was affected by Worth’s actions: her flight required cancelling her scheduled plea

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Gaines must also show that a breach affected his substantial rights, see United States

v. Jensen, 423 F.3d 851, 854 (8th Cir. 2005), and we conclude that he has not done so.

Whether or not the government recommended a third-level reduction for

acceptance of responsibility, the district court was not bound by that recommendation

under the plea agreement. (App. at A7). The court was well aware that Gaines, after

pleading guilty, had declared his innocence and attempted to withdraw his plea. This

conduct is plainly inconsistent with acceptance of responsibility and could have

justified the denial of any reduction under USSG § 3E1.1. See United States v.

Newson, 46 F.3d 730, 734 (8th Cir. 1995); United States v. Smith, 422 F.3d 715, 727

(8th Cir. 2005) (“[I]n light of his attempts to withdraw his guilty plea, [defendant] was

fortunate to receive a two-level reduction for acceptance of responsibility.”). The

additional third-level reduction, which a defendant “is not entitled to . . . as a matter

of right,” is limited to circumstances in which the defendant not only pleads guilty, but

does so in a sufficiently timely manner “so that the government may avoid preparing

for trial and the court may schedule its calendar efficiently.” Smith, 422 F.3d at 726

(internal quotations omitted). By proclaiming his innocence and seeking to withdraw

his guilty plea, Gaines triggered an evidentiary hearing that required the allocation of

scheduling time by the court and the devotion of additional resources by the

government. Under those circumstances, we see no reasonable probability that the

district court would have awarded the three-level adjustment, even if the government

had filed a statement acknowledging the three-level recommendation described in a

plea agreement that was executed before the change in circumstances. Id. at 727

(holding that district court properly denied third-level adjustment where defendant’s

conduct prior to sentencing, including attempt to withdraw guilty plea, was “overly

dilatory and certainly contrary to his admission of guilt[.]”).2
hearing, and her July 2004 not-guilty plea required scheduling a trial before she

decided to plead guilty in August.”); United States v. Kolbe, 109 F. App’x 129, 130

(8th Cir. 2004) (per curiam) (upholding denial of third-level adjustment where

defendant gave notice of intent to plead guilty twelve days before trial, but court had

rule requiring notice of fifteen days, and court thus “expended resources on

scheduling Kolbe’s trial”); United States v. Hernandez, 1999 WL 486620, at *6 (6th

Cir. 1999) (per curiam) (unpublished) (upholding denial of third-level adjustment

where defendant pled guilty shortly before trial and later “attempted to withdraw his

plea which required additional hearings and briefs”).

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As for Gaines’s challenge based on Booker, it is now clear that the district court

erred by sentencing Gaines according to a mandatory guidelines system, but because

Gaines did not raise this objection in the district court, we review his claim only for

plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.) (en banc), cert.

denied, 126 S. Ct. 266 (2005). We conclude that the record as a whole does not

establish a “reasonable probability” that Gaines would have received a more favorable

sentence had the court considered the guidelines as advisory. Id. at 552. Although

Gaines received a sentence at the low end of the applicable guideline range, a low-end

sentence, without more, is insufficient to establish a reasonable probability of a more

favorable sentence under the advisory guidelines system. Id. at 553. The court

indicated that the 210-month sentence was “appropriate,” and nothing in the record

indicates that the court believed a more favorable sentence was warranted. There are

no strong mitigating circumstances that suggest a district court would have imposed

a more lenient sentence under an advisory system. There is thus no plain error

warranting relief.

Gaines’s argument that his three attorneys were ineffective is properly

addressed in a habeas corpus proceeding under 28 U.S.C. § 2255, rather than on direct

appeal. See United States v. Santana, 150 F.3d 860, 863 (8th Cir. 1998). For the

foregoing reasons, we affirm the judgment of the district court.

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