                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1215
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                                 Garron T. Briggs,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 20, 2015
                              Filed: April 12, 2016
                                 ____________

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

       Garron Briggs pleaded guilty to conspiracy to distribute cocaine and to
distribution of cocaine. After a presentence report recommended an enhanced
advisory guideline sentence based on a pending murder charge in state court, Briggs
moved to withdraw his guilty plea. The district court1 determined that Briggs’s plea
was knowing and voluntary, denied the motion, and sentenced Briggs to 300 months’
imprisonment. On appeal, Briggs argues that the district court abused its discretion
in denying his motion to withdraw his guilty plea. He also contends for the first time
that the sentencing enhancement under the guidelines violated his Sixth Amendment
rights. We reject his claims and affirm.

                                          I.

       In September 2012, a grand jury charged Briggs with conspiracy to distribute
cocaine and distribution of crack cocaine. In June 2014, Briggs pleaded guilty to
both counts without any plea agreement. At the time of his guilty plea in the federal
case, Briggs had been charged in Jackson County, Missouri, with several state
criminal violations, including a count of first-degree murder stemming from an
alleged drug-related robbery. State v. Briggs, No. 1116-CR03745-01 (Mo. Cir. Ct.
filed Sept. 2, 2011). At Briggs’s change-of-plea hearing, his attorney explained that
Briggs was pleading guilty in an effort to avoid sentencing enhancements based on
the state charges and with the hope that the state court would impose a sentence
concurrent to Briggs’s federal sentence.

      In his plea colloquy, Briggs admitted that he was guilty of both federal charges.
The court advised Briggs about the rights he was waiving, the statutory minimum and
maximum penalties for each offense, and the process by which an advisory guideline
range would be calculated. On questioning by his attorney, Briggs acknowledged that
he could not “withdraw [the plea] if we don’t like how that presentence report comes
out.” The district court accepted Briggs’s plea, finding that there was a factual basis



      1
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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for Briggs’s guilt, that Briggs made the plea knowingly and voluntarily, and that there
was not probable cause to believe his counsel was ineffective.

       The probation office then prepared a presentence investigation report. The
applicable sentencing guideline for Briggs’s offenses of conviction is USSG § 2D1.1.
Section 2D1.1(d)(1) contains a cross-reference providing that, if a victim died under
circumstances that would constitute first-degree murder under 18 U.S.C. § 1111, the
district court should apply USSG § 2A1.1 if the resulting offense level is greater than
the defendant’s offense level under § 2D1.1. The probation office concluded that the
cross-reference applied based on Briggs’s charge of first-degree murder, because the
murder was in furtherance of the conspiracy to which Briggs pleaded guilty.

       The cross-reference increased Briggs’s base offense level from 32 to 43.
Compare USSG § 2D1.1(c)(5) (2013), with id. § 2A1.1. Based on an offense level
of 43 and a criminal history category of III, the probation office calculated an
advisory guideline sentence of life imprisonment. Briggs objected, arguing that he
should have received a two-level reduction for acceptance of responsibility and that
the report improperly relied on the unadjudicated state murder charge.

       Shortly before his sentencing hearing, Briggs moved pro se for appointment
of new counsel, asserting that his attorney “has been completely ineffective, and an
irrevocable breakdown in the attorney client relationship has occurred.” Briggs
alleged that his attorney failed to investigate the case, failed to develop a trial
strategy, and misled him about the nature of his plea. As a result of these alleged
deficiencies, Briggs said he was “forced . . . into [sic] unwillingly plead guilty in the
eleventh hour before trial.”

      At the beginning of Briggs’s sentencing hearing, the district court addressed
the motion for appointment of new counsel. Briggs clarified that the purpose of his
motion was to withdraw his guilty plea, but if withdrawal was not possible, then he

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did not object to his attorney’s continued representation. Briggs told the court that
he “didn’t understand the plea that [he] took” and entered his plea expecting a lower
offense level, with the possibility that his offenses would be reduced to lesser-
included class B felonies. The court reminded Briggs that it made no representations
about sentencing at the change-of-plea hearing. After finding that Briggs’s plea was
knowing and voluntary, the court denied Briggs’s motion to withdraw his guilty plea.
Briggs then orally withdrew his motion for new counsel.

       In the evidentiary phase of the hearing, the government called a detective from
the Kansas City, Missouri Police Department who had been involved in the state
investigation of Briggs. According to the detective, Briggs and a co-defendant were
charged with murdering one man and shooting the man’s girlfriend in the head while
trying to recover money and cocaine that had been stolen from them in an earlier
burglary. The surviving victim identified Briggs as the shooter in a recorded
statement. The recording was received as evidence.

       The district court ruled that the cross-reference to USSG § 2A1.1 applied,
because the government established by clear and convincing evidence that the murder
occurred and was relevant conduct to Briggs’s conspiracy offense. The court further
determined that Briggs was not entitled to a reduction for acceptance of
responsibility. Accordingly, the district court found an advisory guideline range of
life imprisonment. After considering Briggs’s allocution and the sentencing factors
in 18 U.S.C. § 3553(a), the court varied downward from the advisory range and
sentenced Briggs to concurrent sentences of 300 months’ imprisonment on each
count.

                                          II.

      Briggs reiterates on appeal that the district court erred by not allowing him to
withdraw his guilty plea. Pleading guilty is a “solemn act not to be set aside lightly.”

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United States v. Pacheco, 641 F.3d 970, 973 (8th Cir. 2011) (quoting United States
v. Bowie, 618 F.3d 802, 810 (8th Cir. 2010)). After the district court has accepted the
guilty plea, a defendant may withdraw his plea prior to sentencing for a “fair and just
reason.” Fed. R. Crim. P. 11(d)(2)(B); see United States v. Ramirez-Hernandez, 449
F.3d 824, 826 (8th Cir. 2006). We review the district court’s denial of Briggs’s
motion to withdraw his plea for abuse of discretion. United States v. Thomas, 705
F.3d 832, 834 (8th Cir. 2013) (per curiam).

       In the district court, Briggs argued that he did not understand his guilty plea,
and therefore should have been allowed to withdraw the plea. Briggs told the district
court that he expected an offense level of 32 and an opportunity to argue that his
convictions should be reduced to lesser-included offenses with a statutory maximum
sentence of forty years’ imprisonment. In his pro se motion, Briggs blamed this
confusion on “misleading information” and “false promises” from his attorney.

      Under circuit precedent, misapprehension about the applicable guidelines
calculation is not a fair and just reason to withdraw a plea, even if the confusion
stemmed from erroneous legal advice.

      A defendant may not withdraw a 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.

Ramirez-Hernandez, 449 F.3d at 826 (citations omitted). Briggs argues that Missouri
v. Frye, 132 S. Ct. 1399 (2012), and Padilla v. Kentucky, 559 U.S. 356 (2010),
undermine Ramirez-Hernandez, but those decisions concern the Sixth Amendment



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right to effective assistance of counsel during plea bargaining and do not address the
scope of Rule 11.

      Here, the district court explained to Briggs the statutory range of punishments
for both counts of the indictment. The court further advised Briggs that it would
order preparation of a presentence report and advised Briggs how the court would
calculate a sentencing range. Therefore, Briggs is not entitled to withdraw his plea.

       On appeal, Briggs modifies his argument, now contending that his attorney’s
advice was not just misleading but constitutionally ineffective under the Sixth
Amendment. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Ineffective
assistance of counsel is usually best litigated in collateral proceedings, because the
claim depends on a factual record beyond that created in the criminal case. United
States v. Payton, 168 F.3d 1103, 1105 n.2 (8th Cir. 1999). As no record was
developed on a Sixth Amendment claim in the district court, any claim of ineffective
assistance of counsel should be raised in a motion under 28 U.S.C. § 2255.

                                         III.

      Briggs argues alternatively that the district court, by applying the cross-
reference to USSG § 2A1.1 and sentencing him based on the increased advisory
guideline range, violated his Sixth Amendment right to trial by jury. The Supreme
Court has held that the Sixth Amendment requires that any fact “essential to the
punishment” must be admitted by the defendant or proved to a jury beyond a
reasonable doubt. Blakely v. Washington, 542 U.S. 296, 303-04 (2004); Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Briggs asserts that the § 2A1.1 cross-
reference is essential to his punishment because without it, he contends, a 300-month
sentence would have been substantively unreasonable. See Gall v. United States, 552
U.S. 38, 51 (2007). Because application of the cross-reference relied on judicial fact-
finding, Briggs maintains that the sentence violates the Sixth Amendment. Briggs

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forfeited this argument in the district court, so we review for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).

       This court has held that applying the cross-reference to USSG § 2A1.1 does not
violate the Sixth Amendment because § 2A1.1 “neither increases the penalty beyond
the statutory maximum nor increases the mandatory minimum.” United States v.
Davis, 753 F.3d 1361, 1361 (8th Cir. 2014) (per curiam) (citation omitted); see also
United States v. Jenkins, 792 F.3d 931, 935-36 (8th Cir. 2015); United States v.
Jackson, 782 F.3d 1006, 1013 (8th Cir. 2015). These decisions, however, do not
address the precise argument that Briggs raises here. Davis, Jenkins, and Jackson
held that the facts necessary to apply the § 2A1.1 cross-reference need not always be
admitted by the defendant or submitted to the jury. Briggs poses a second-order
question: Even if the cross-reference does not violate the Sixth Amendment on its
face, he contends, the district court violated the Sixth Amendment here by selecting
a sentence that could not lawfully be imposed based only on the facts admitted in his
guilty plea. In other words, the argument goes, the judicial fact-finding in this case
did increase the statutory maximum punishment.

       We conclude that Briggs has failed to identify a plain error warranting relief.
The plain-error standard requires an appellant to establish an error that is “obvious”
or “clear under current law.” Olano, 507 U.S. at 734. Given the discretion available
to the district courts after Gall, and the statutory maximum terms of life
imprisonment, we do not think it obvious that a sentence of 300 months’
imprisonment would be substantively unreasonable for Briggs’s two drug-trafficking
convictions standing alone. See United States v. Feemster, 572 F.3d 455, 464 (8th
Cir. 2009) (en banc).

      Even if the premise of an unreasonable sentence were satisfied, moreover,
Briggs’s interpretation of the Sixth Amendment is not clearly correct under current
law. Briggs relies on a dissent from denial of certiorari in which three Justices opined

                                          -7-
that “any fact necessary to prevent a sentence from being substantively
unreasonable—thereby exposing the defendant to the longer sentence—is an element
that must be either admitted by the defendant or found by the jury.” Jones v. United
States, 135 S. Ct. 8, 8 (2014) (Scalia, J., joined by Thomas and Ginsburg, JJ.,
dissenting from denial of certiorari). The Court, however, has not adopted that
rationale, and all eight circuits to address the issue have declined to extend Apprendi
in this way. See United States v. Medina, No. 15-0445, 2016 WL 1018993, at *2 (2d
Cir. Mar. 15, 2016); United States v. Jones, 744 F.3d 1362, 1370 (D.C. Cir. 2014);
United States v. Norman, 465 F. App’x 110, 120-21 (3d Cir. 2012) (citing United
States v. Grier, 475 F.3d 556, 564-65 (3d Cir. 2007) (en banc)); United States v.
Hernandez, 633 F.3d 370, 373-74 (5th Cir. 2011); United States v. Treadwell, 593
F.3d 990, 1017 (9th Cir. 2010); United States v. Ashqar, 582 F.3d 819, 824-25 (7th
Cir. 2009); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008); United
States v. Redcorn, 528 F.3d 727, 745-46 (10th Cir. 2008). Although the Jones dissent
shows that there is room for debate, we do not believe that all of these courts are
obviously wrong. Accordingly, there was no plain error, and Briggs is not entitled
to relief.

                                   *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




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