1The Honorable John F. Nangle, United States District Judge for the Eastern

District of Missouri, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3584

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the Western

Ezio G. D'Angelo, * District of Missouri.

Also Known as Joe D'Angelo, *

*

Appellant. *

___________

Submitted: March 12, 1999

Filed: April 9, 1999

___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

NANGLE,1 District Judge.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Ezio D'Angelo pleaded guilty to distributing cocaine, being a felon in

possession of a weapon, and tampering with a witness, in violation of 21 U.S.C.

§ 841(a)(1), 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 1512(b)(3), respectively.

Mr. D'Angelo says that it was only after he pleaded guilty that he learned that his
2The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

2–

criminal history score under the federal sentencing guidelines was subject to an

enhancement because he was an armed career criminal within the meaning of

U.S.S.G. § 4B1.4(a). When Mr. D'Angelo moved, through new counsel, to withdraw

his plea because of his mistaken belief about the guideline range that he was facing,

the district court2 denied the motion.

Mr. D'Angelo's plea agreement with the government provided that if the

government determined that Mr. D'Angelo had provided substantial assistance in its

investigations of the offenses with which he was charged and of other offenses, then

it would make a motion for a downward departure pursuant to U.S.S.G. § 5K1.1, 18

U.S.C. § 3553(e), or both. At sentencing, however, the government refused to make

such a motion because it believed that Mr. D'Angelo had failed to provide substantial

assistance. The district court denied Mr. D'Angelo's motion to compel the

government to request a downward departure.

Mr. D'Angelo appeals from the denial of his motion to withdraw his guilty plea

and the denial of his motion to compel the government to request a downward

departure. We affirm.

I.

Mr. D'Angelo's dissatisfaction with the district court's ruling on his motion to

withdraw his guilty plea can be shortly dealt with, for we have held many times that

a defendant's reliance on erroneous legal advice from his counsel in deciding to enter

a guilty plea does not provide a ground for withdrawing the plea. Mr. D'Angelo

directs our attention to Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (en

banc), cert. denied, 497 U.S. 1011 (1990), and argues that it supports a right to

withdraw his plea under the present circumstances. But in that case we held only that
3–

post-conviction relief was, in an appropriate case, available to a prisoner who had

relied on erroneous legal advice in deciding to plead guilty. Mr. D'Angelo may seek

post-conviction relief if he wishes, but the district court in the present case committed

no error in denying his motion to withdraw his plea.

II.

When the government declined to make the departure motion that the plea

agreement had conditionally provided, the district court held a hearing at which it

concluded that the government was not required to make such a motion because the

government had properly determined that Mr. D'Angelo had not provided it with

substantial assistance. While we have held that the government may not irrationally

refuse to make such a motion, see, e.g., United States v. Rounsavall, 128 F.3d 665,

667-68 (8th Cir. 1997), our reading of the record in this case makes it plain that the

district court here did not clearly err in holding that the government had not acted

irrationally. 

Mr. D'Angelo insists that he told the government everything that he knew, but

he broke off discussions when he decided that he wanted to withdraw his plea. His

protestations, moreover, focus on the wrong datum: The question is not whether he

told all that he knew; the question is whether the government could rationally

conclude that the information that he provided was not substantial. The record amply

supports a conclusion that it could.

III.

For the reasons indicated, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.