                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 8 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 00-1350
          v.                                           (D. Colorado)
 ABEL SAENZ,                                     (D.C. No. 99-CR-317-M)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




      Abel Saenz pled guilty to one count of conspiracy to distribute or possess

with intent to distribute 500 grams or more of cocaine. He was sentenced to 159

months imprisonment. He appeals that sentence. We affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                     BACKGROUND

       Mr. Saenz and three others were indicted in September 1999 on a two count

indictment. The first count charged them with conspiracy to distribute or to

possess with intent to distribute 500 grams or more of cocaine, in violation of 21

U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(ii). The second count charged them

with distributing or possessing with the intent to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 18 U.S.C.

§ 2.

       On November 19, pursuant to a Plea Agreement, Mr. Saenz pled guilty to

the first count of the indictment and the government dismissed the second count

of the indictment. The terms of the Agreement stated that it was made pursuant to

Fed. R. Crim. P. 11(e)(1)(B).   1
                                    The Agreement included the following:

       6.    The parties understand that sentencing – and any departure
             from the applicable guideline range and the statutory
             mandatory minimum – is solely within the sound discretion of
             the Court.




       Fed. R. Crim. P. 11(e)(1)(B) provides that the attorneys for the government
       1

and the defendant may agree that, after the defendant pleads guilty, the
government attorney will:

       recommend, or agree not to oppose the defendant’s request for a
       particular sentence or sentencing range, or that a particular provision
       of the Sentencing Guidelines, or policy statement, or sentencing
       factor is or is not applicable to the case. Any such recommendation
       or request is not binding on the court.

                                           -2-
             ....

             The statement of facts herein does not preclude either party
      from presenting and arguing, for sentencing purposes, additional
      facts or factors not included herein that are relevant to the guideline
      computation or to sentencing in general. Nor is the Court or
      Probation precluded from considering such facts.

             ....

            The parties understand that the Court may impose any
      sentence, up to the statutory maximum, regardless of any guideline
      range computed, and that the Court is not bound by any position of
      the parties. The Court is free . . . to reach its own findings of fact
      and sentencing factors considering the parties’ stipulations, the
      presentence investigation, and any other relevant information.

            . . . New facts that arise or are discovered may cause a party to
      change its position with regard to guideline computation or
      sentencing.

Plea Agreement at 3, 4, 7, Appellant’s App. Tab D (citations omitted). The Plea

Agreement further provided, with respect to Mr. Saenz’s criminal history, as

follows:

             The parties understand that the defendant’s criminal history
      computation contained herein is tentative, that Probation will further
      investigate his criminal history, and that the final criminal history
      category will be determined by the Court.

Id. at 7. The Agreement then listed five criminal convictions or offenses,

including the present one, and concluded “at this time it appears that defendant

has 8 criminal history points and, therefore, a tentative criminal history category




                                         -3-
IV.” Id. at 8. The Agreement also stated, “[t]he career offender/career livelihood

adjustments do not apply.”   Id.

      The Agreement further provided:

              The guideline range resulting from the estimated offense level
      set forth . . . above, and the tentative criminal history category . . .
      above, is 70-87 months. However, in order to be as accurate as
      possible, with the criminal history category undetermined at this
      time, the estimated offense level set forth . . . above could
      conceivably result in a range from 46-57 months (bottom of Category
      I), to 92-115 months (top of Category VI). However, based upon the
      net weight of the controlled substance involved, the statutory
      minimum mandatory is 60 months, and the statutory maximum
      sentence is 40 years.

Id. at 8-9. The Agreement contained another paragraph explicitly setting forth the

maximum statutory penalty of 40 years.   Id. at 3.

      At the change-of-plea hearing, the district judge advised Mr. Saenz that the

mandatory minimum sentence was five years and that there was “a possibility of

up to 40 years.” Tr. of Change of Plea Proceedings at 9, Appellant’s App. Tab L.

After reviewing various aspects of the Plea Agreement with Mr. Saenz, the

following colloquy occurred:

      THE COURT: But the sentencing is to be decided, the particular
      sentence applicable to you, under a set of guidelines. And this
      document that we’re looking at deals with those guidelines.

            Now, admittedly, they’re kind of complex, and it involves a
      scoring system, points on, points off. And a lot of what this
      document talks about is what your lawyer, Mr. Lozow, and Mr.
      Troyer, the government’s lawyer, think would be the guideline
      computation for you. Do you understand that?

                                         -4-
      THE DEFENDANT: Yes, I do. I read it.

      THE COURT: Okay. Now, included in that scoring system is prior
      offenses, other crimes that you’ve been found guilty of. Do you
      understand that?

      THE DEFENDANT: Uh-huh. Yes.

      THE COURT: And it’s expected here that that might put you in
      what’s called a Category 4, and that the guideline range there would
      be 70 to 87 months.

      THE DEFENDANT: Uh-huh.

      THE COURT: Okay. Now, you know, we’re not here to decide what
      the sentence would be exactly, because if you go ahead with the plea
      of guilty, what will happen is the matter will be put over. It takes
      about ten weeks for the whole process. The probation officer gets
      assigned, does some checking of records, gathers information,
      including any information from you, and prepares what’s called a
      presentence report, which you get to read in advance, and to which
      you can state any objection that you have through your lawyer, he’ll
      go over it with you, and the government, too, and then we’d have a
      hearing, at which time I would decide the exact sentence that would
      be imposed on you. It’s my responsibility to do that. Understand?

      THE DEFENDANT: Yes, I do.

Id. at 9-10. After further colloquy, the judge stated, “[s]o, like I say, there’s no

way for you to know this morning the exact sentence that would be imposed, and

you have to think about it in terms of maybe you’re going to spend five years in

prison.” Id. at 12.

      Mr. Saenz’s attorney stated, “I don’t see any defense in this case, either

legal or factual. The district attorney has indicated they’d make a non-binding


                                          -5-
recommendation for 60 months in this case.”     Id. at 19. The judge then concluded

that “the plea of guilty to Count 1 has been entered knowing[ly], voluntarily and

intelligently.”   Id. The court did not advise Mr. Saenz that he would not be

entitled to withdraw his guilty plea even if the court did not accept the sentencing

recommendation contained in the Plea Agreement. This latter advisement is

required by Fed. R. Crim. P. 11(e)(2) for plea agreements entered under Fed. R.

Crim. P. 11(e)(1)(B).

       Prior to the scheduled sentencing date, Mr. Saenz was informed that, in the

course of preparing its presentence report, the probation department had

discovered that he had an additional felony drug conviction that qualified as a

controlled substance offense under the career offender guideline. Based upon this

discovery, the presentence report classified Mr. Saenz as a career offender and

calculated the applicable guideline range as 188-235 months.

       On January 4, 2000, Mr. Saenz filed a motion to clarify, seeking a status

hearing, and a motion to continue sentencing. He essentially sought to have the

Plea Agreement enforced so that he would receive a five-year sentence. The

government responded that the presentence report’s classification of Mr. Saenz as

a career offender and its corresponding guideline range calculation of 188-235

months was correct and that Mr. Saenz “should be sentenced to 160 months (      i.e. ,

the bottom of that range less 15% pursuant to the government’s agreement to file


                                          -6-
a motion under Section 5K1.1 of the Sentencing Guidelines [for substantial

assistance]).” Government’s Resp. to Presentence Investigation Report at 4,

Appellant’s App. Tab I. The government filed a motion for downward departure,

as the Plea Agreement provided, based upon Mr. Saenz’s substantial assistance.

       Mr. Saenz’s attorney, Donald Lozow, then filed a motion to withdraw as

counsel, citing Mr. Saenz’s request that Mr. Lozow no longer represent him. At

the first sentencing hearing, held on January 28, 2000, the court stated, “[y]ou

know, the man ought to withdraw his plea if this is a shock that he—this isn’t a

voluntary plea because he didn’t realize the extent of his exposure, and we’ll go

to trial.” Tr. of Sentencing Proceedings at 8, Appellant’s App. Tab M.

Mr. Saenz’s attorney responded to that “invitation,” as follows: “If we do that,

Your Honor, and believe me, I’ve spent some sleepless nights over this, if the

Court does that . . . he loses his three level credits [for acceptance of

responsibility].   Id. Mr. Saenz did not at that time seek to withdraw his guilty

plea. The judge continued the sentencing proceeding to permit the probation

department to gather more information about the cases upon which it based Mr.

Saenz’s criminal history.

       The continued hearing occurred on May 5, 2000, at which time the court

reviewed the probation department’s latest information on Mr. Saenz’s prior

convictions and considered Mr. Saenz’s attorney’s request to withdraw from the


                                          -7-
case. Mr. Saenz’s attorney, Mr. Lozow, stated that Mr. Saenz wished to withdraw

his guilty plea and proceed to trial with a different attorney, although no formal

motion to withdraw the plea was made at that time. When Mr. Lozow referred to

the court’s observation at the January 28, 2000, hearing that Mr. Saenz ought to

withdraw his plea “if this [the discovery that he qualified for career offender

status] is a shock,” the court characterized its prior statement as “thinking out

loud.” Tr. of Sentencing and Hr’g on Mot. to Withdraw at 4, Appellant’s App.

Tab N.

      When asked its position on any proposed motion to withdraw the guilty

plea, the government responded that it opposed such withdrawal, stating, “[t]he

plea agreement sets forth in several places clearly that sentencing is up to the

Court, it’s in the sole discretion of the Court. None of the numbers in there are

guarantees. And in two separate places, it sets forth the statutory maximum of 40

years.” Id. at 8. The government also explained its view that Mr. Saenz

presented no justification for withdrawing his guilty plea:

      [a]nd I think there had been no other grounds stated other than the
      surprise, as Your Honor called it, from that New Mexico conviction,
      and that should not have been a surprise to the defendant himself.
      He’s the one in the best position to be fully aware of the sentence
      that he actually served time on.

Id. The court granted Mr. Lozow’s motion to withdraw, and continued the

sentencing proceeding to permit Mr. Saenz to obtain a new attorney.


                                         -8-
      After several more continuances, sentencing finally occurred on August 18,

2000, with Mr. Saenz represented by new counsel. At that hearing, Mr. Saenz

sought to withdraw his guilty plea on the ground that the voluntariness of his

guilty plea was conditioned upon the affirmative representation in the Plea

Agreement that he was not subject to the career offender provisions of the

guidelines. The court denied the motion to withdraw the guilty plea, stating:

      The finding that I made at the time of the entry of the sentencing—of
      the plea of guilty under the agreement that it was knowing and
      voluntary is still the finding. The plea agreement is absolutely clear
      that Mr. Saenz could be sentenced up to the statutory maximum, and
      that what was set out here as the expectation of counsel was subject
      to the modification that the Court, of course, would make the
      determination of the sentencing guidelines at the time of sentencing.

Tr. of Sentencing Proceedings at 9, Appellant’s App. Tab P. The judge sentenced

Mr. Saenz to 159 months imprisonment.

      Mr. Saenz appeals, arguing he should have been permitted to withdraw his

guilty plea because the government violated the Plea Agreement by agreeing with

the presentence report’s classification of him as a career offender and by

recommending a sentencing guideline range of 188-235 months. He also argues

that the district court failed to advise him, as required by Rule 11, that he could

not withdraw his guilty plea even if the court failed to follow the government’s

recommendation in the Plea Agreement.




                                         -9-
                                      DISCUSSION

       I. Denial of Motion to Withdraw Guilty Plea

       We review for an abuse of discretion the district court’s denial of

Mr. Saenz’s motion to withdraw his guilty plea.        United States v. Siedlik , 231

F.3d 744, 748 (10th Cir. 2000). “Defendants do not have an absolute right to

withdraw a guilty plea.”    Id. Fed. R. Crim. P. 32(e) provides that “[i]f a motion

to withdraw a plea of guilty . . . is made before sentence is imposed, the court

may permit the plea to be withdrawn if the defendant shows any fair and just

reason.” See Siedlik , 231 F.3d at 748. The defendant bears the burden of

establishing a “fair and just reason” for withdrawal of the plea.      Id.

       Mr. Saenz argues he should have been allowed to withdraw his guilty plea

because the government affirmatively represented to him that he would not be

classified as a career offender for sentencing purposes. Thus, Mr. Saenz argues,

when the government later agreed with the probation department’s

recommendation that he in fact be sentenced as a career offender, it violated the

Plea Agreement. We disagree.

       As the government points out, and the district court noted, the Plea

Agreement was replete with references to the fact that the court had complete

discretion to ultimately determine Mr. Saenz’s sentence, notwithstanding any

position taken by any party. It also expressly contemplated the consideration by


                                            - 10 -
the court of “additional facts or factors not included herein that are relevant to

the guideline computation.” Plea Agreement at 4, Appellant’s App. Tab D.

Further, it stated that Mr. Saenz’s criminal history calculation was tentative, that

the probation department would “further investigate his criminal history,”      id. at 7,

and that the Plea Agreement itself “is not conditioned on the defendant being in a

particular criminal history category.”   Id. at 8. Finally, it reiterated several times

that the statutory maximum penalty was forty years. Thus, the Agreement did not

bind the government or the court to the conclusion that Mr. Saenz could never be

classified as a career offender.

       Moreover, the reason for the government’s and the court’s initial

misapprehension as to whether Mr. Saenz qualified for career offender status was

because a prior felony drug conviction was omitted from the recitation in the Plea

Agreement of Mr. Saenz’s criminal history. We must assume that only Mr. Saenz

was aware of the omission. Thus, the erroneous conclusion that Mr. Saenz did

not qualify for career offender status was the result of his implicit

misrepresentation to the government and the court.

       Additionally, as we have stated before:

       this circuit looks to seven factors in deciding whether a defendant
       has met the burden of showing that the district court, in denying a
       motion to withdraw a plea, acted unjustly or unfairly: (1) whether
       the defendant has asserted his innocence; (2) whether the government
       will be prejudiced if the motion is granted; (3) whether the defendant
       has delayed in filing the motion; (4) the inconvenience to the court if

                                          - 11 -
       the motion is granted; (5) the quality of the defendant’s assistance of
       counsel; (6) whether the plea was knowing and voluntary; and (7)
       whether the granting of the motion would cause a waste of judicial
       resources.

Siedlik , 231 F.3d at 749. Consideration of these factors weighs against permitting

the withdrawal of Mr. Saenz’s guilty plea.

       First, Mr. Saenz has never asserted his innocence. Indeed, his counsel

conceded he had no defense, “either legal or factual.” Tr. of Change of Plea

Proceedings at 19, Appellant’s App. Tab L. Second, withdrawal “likely would

prejudice the government by forcing it to undergo much of the same process it

already has completed.”    Siedlik , 231 F.3d at 749. Third, Mr. Saenz delayed

seeking to withdraw his plea and only, finally, moved to withdraw orally right

before sentence was imposed, some seven months and several hearings after the

career offender issue arose.   2
                                   Cf. United States v. Rhodes , 913 F.2d 839, 845

(10th Cir. 1990) (noting that defendant failed to satisfy third factor where he

“orally moved to withdraw his plea when the sentencing hearing was already

underway, with no explanation as to why a motion to withdraw the guilty plea had

not been submitted earlier”). Fourth, the court would undoubtedly be

inconvenienced by permitting a knowing and voluntary plea to be withdrawn right



       As his attorney at one point acknowledged in court, there would be some
       2

measurable risks to Mr. Saenz involved in withdrawing his guilty plea. He would
lose the three-level reduction for acceptance of responsibility and his substantial
assistance reduction could also be at risk.

                                            - 12 -
before sentencing. Fifth, although Mr. Saenz asked to have his first attorney

released, there is no evidence that he was ineffective in any way. Sixth, the plea

was knowing and voluntary, in the sense that Mr. Saenz had read and understood

its terms and was not coerced into making it, although the court, as discussed

below, failed to give part of the advice required under Fed. R. Crim. P. 11.

Finally, allowing the plea to be withdrawn at this point would waste judicial

resources.

      In sum, while Mr. Saenz was surely disappointed when he realized his

sentence would be 159 months rather than 60 months, such a sentence was

permissible and possible under the terms of the Plea Agreement. It is neither

unfair nor unjust to prevent Mr. Saenz from taking advantage of a factual

omission in the Plea Agreement of which he alone was aware. We therefore find

no abuse of discretion in the district court’s denial of his motion to withdraw his

guilty plea.



      II. Fed. R. Crim. P. 11 Advice

      Mr. Saenz also argues his acceptance of the Plea Agreement was

involuntary because neither the Agreement nor the court gave him the full

advisement required by Fed. R. Crim. P. 11. The Plea Agreement expressly stated

that it was a Rule 11(e)(1)(B) agreement. The government concedes it was such


                                        - 13 -
an agreement. We therefore assume that it was.      3
                                                        As such, the court was required

by Rule 11(e)(2) to “advise the defendant that if the court does not accept the

recommendation or request the defendant nevertheless has no right to withdraw

the plea.” As the government agrees, the court failed to give that advisement, nor

did the Agreement itself contain any such advisement. In that situation, “the issue

for this court to determine is whether such failure was harmless error.”       United

States v. Vaughn , 7 F.3d 1533, 1535 (10th Cir. 1993). “Harmless error” is

defined as follows: “Any variance from the procedures required by this rule

which does not affect substantial rights shall be disregarded.” Fed. R. Crim. P.

11(h). “The issue of whether a district court has substantially complied with rule

11, including an analysis under subsection 11(h), before accepting a guilty plea, is

a question of law subject to review de novo.”       Vaughn , 7 F.3d at 1535.

       In determining whether the failure to give the full advisement was harmless

error, we have held that such error “warrants reversal only if it had a significant




       The government at oral argument characterized the Agreement as a “soft”
       3

Rule 11(e)(1)(B) agreement because it does not contain a specific sentence or
even a specific sentencing range which the government agreed to recommend to
the court. Rather, different parts of the Agreement refer to different sentencing
ranges and options. And, although the Agreement states that the career offender
guideline is inapplicable, the Agreement also clearly states that the criminal
history calculation is tentative and subject to revision. The Agreement as a whole
makes it clear that the court would ultimately determine Mr. Saenz’s exact
sentence and additional information would be gathered about Mr. Saenz’s
criminal history and could be used.

                                           - 14 -
influence on appellant’s decision to plead guilty.”     Id. “We will not hold a Rule

11 defect harmless where the plea is a product of a ‘material misrepresentation’

relied on by the defendant.”    United States v. Gigot , 147 F.3d 1193, 1197 (10th

Cir. 1998). “Nor will we find harmless error where ‘[t]here is a reasonable

possibility that [defendant] was confused in a way that compliance with Rule 11

could have remedied.’”     Id. (quoting United States v. Theron , 849 F.2d 477, 481

(10th Cir. 1988)).

       Because each case is so fact-specific, our prior cases finding a Rule 11

violation either harmless or not harmless are instructive. In       Theron , the district

court, as here, failed to advise the defendant under Rule 11(e)(2). We held the

error was not harmless and accordingly vacated the defendant’s conviction and

sentence. In Vaughn , we reached the opposite conclusion, finding the Rule

11(e)(2) violation harmless. The factual differences between the two cases are

significant: in Theron , the defendant was a South African, “not familiar with

American criminal procedure, and his counsel was in the process of

unsuccessfully attempting to withdraw from the case.”           Theron , 849 F.2d at 481.

Moreover, the defendant was confused as to what the plea agreement stated

“because of the language barrier and the difference in customs.”         Id.

Furthermore, we found the timing of the defendant’s motion to withdraw




                                           - 15 -
significant: as soon as he realized he might not get the recommended sentence,

he filed a motion to withdraw his plea.

       In Vaughn , by contrast, we were “convinced that Vaughn understood the

contents of the plea agreement. He knew that the court was not bound by

anything contained in the agreement.”       Vaughn , 7 F.3d at 1536. In that case, the

plea agreement “neither guaranteed nor even mentioned a specific length of

sentence. . . . Vaughn had no guarantees even as to the applicable base offense

level or criminal history category because neither could be reasonably calculated

until after the presentence investigation   .” Id. (emphasis added). Furthermore, we

noted that “Vaughn does not allege that he would not have entered a guilty plea if

the court had given the proper warning, which is relevant and important to a

harmless error analysis.”    Id.

       While we agree with the government that this is a close case, we conclude,

on balance, that the error was harmless. First, Mr. Saenz has never argued that he

would not have entered a guilty plea had the court given him the full advisement.

Indeed, the record contains various references to both Mr. Saenz’s and his

attorney’s awareness of the fact that he would have faced a real risk of an even

greater sentence than the one he ultimately received had he gone to trial and been

found guilty. And the likelihood of his being found guilty was significant.

Second, although the possibility of his withdrawing his guilty plea was


                                            - 16 -
mentioned, he never actually moved to do so until right before sentencing, some

seven months after the issue of Mr. Saenz’s career offender status arose. Third,

although the Plea Agreement mentioned 60 months, the Agreement as a whole

made it abundantly clear that Mr. Saenz’s criminal history was tentative and

subject to revision, that the court would make the final decision on sentencing,

and that the maximum statutory sentence possible was forty years. As we were

with the defendant in Vaughn , we are convinced Mr. Saenz understood the

contents of that Agreement. In sum, we conclude that the error in failing to

specifically advise Mr. Saenz that he could withdraw his guilty plea if the court

did not accept the recommendations in the Plea Agreement did not substantially

affect his decision to plead guilty, and was, accordingly, a harmless error.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM Mr. Saenz’s sentence and

conviction.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                        - 17 -
