                    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


      1
       The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
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


      2
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

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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.

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