## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 04-1103

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Ronnie C. Gaines, * * [UNPUBLISHED] Appellant. *

___________ Submitted: October 25, 2005 Filed: July 5, 2006

___________ 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 Ga ines had accepted responsibility in a timely fashion, and that the government believed he was entitle d to a three-level reduction pursuant to1 The Honorable Richard E. Dorr, United St ates District Judge for the Western District of Missouri.

-2- USSG § 3E1.1, subject to his conforming to the conditions of pretrial release and “not otherwise violating any terms or conditions of this plea agreemen t.” The agreement also specified that the guidelines comput ation set forth in the agreement “does not bind the Court or the United States Probati on Office with respect to the appropriate Guideline levels.” (App. at A7) (emphasis in original).

Prior to sentencing, defense counsel inform ed 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 agreem ent’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 court 1 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 senten ced Gaines to 210 months’ imprisonment.

Gaines’s current counsel moved to withdraw and f iled 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 request ed supplemental briefs from the parties addressing the claim that the governmentbreached the plea agreement and the-3- reasonableness of the sentence in light of United States v. Booker , 543 U.S. 220 (2005).

We first conclude that the district c ourt 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 dislik ed the sentence to be imposed, and that he was not prejudiced by any failure of his c ounsel at his plea hearing. The court’s finding that Gaines’s change of heart wa s “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 argumen t that he is entitled to resentencing because the government breached the pl ea agreement by recommending a two-level reduction for acceptance of responsibility, rather than the three-level reduction contemplated by his plea agreement. Gain es did not allege a breach of the plea agreement at sentencing, rest ate the terms of the agreemen t 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 reco mmendation it had provide d,” 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 course s 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, th e matter of an alleged breach was not properly preserved, and wewould review the claim only for plain error. United States v. Olano, 507 U.S. 725, 735-36 (1993). To gain re lief under that standard, a defendant-4- must show that the district court committe d 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 argumen t that the government’s advocacy at sentencing was inconsistent with the plea ag reement. 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 gu ilty plea. But Gaines ultimately did not withdraw his plea, and at the time of his se ntencing 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 re sponsibility, and it is difficult for the government to show that Gaines breachedthe agreement by making an unsuccessful attempt to withdraw his plea. We may assume , therefore, that ther e was “error” in the sentencing proceeding.

Under plain error review, however, Gain es must establish more than a breach of the plea agreement. We are doubtful thatany 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 prep aration, the court’s allocation of resources was affected by Worth’s actions: her fli ght required cancelling her scheduled plea

-5- 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 th at 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 acc eptance 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 reducti on 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 sc hedule 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 eviden tiary hearing that required the allocation of scheduling time by the court and the de votion of additional resources by the government. Under those circumstances, we see no reasonable probability that the district court would have aw arded the three-level adjustment, even if the government had filed a statement acknowledging the th ree-level recommendation described in a plea agreement that was executed befo re the change in circumstances. Id . at 727 (holding that district court properly deniedthird-level adjustment where defendant’s conduct prior to sentencing, including attemp t to withdraw guilty plea, was “overly dilatory and certainly contrary to his admission of guilt[.]”). 2hearing, 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 “attemp ted to withdraw his plea which required additional hearings and briefs”).

-6- 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 di strict 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 Gain es 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 applicab le 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 sugge st 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 atto rneys 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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