                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    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                                         * [UNPUBLISHED]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.
                           ___________

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 Gaines had accepted responsibility in a timely fashion, and
that the government believed he was entitled to a three-level reduction pursuant to
USSG § 3E1.1, subject to his conforming to the conditions of pretrial release and “not
otherwise violating any terms or conditions of this plea agreement.” The agreement
also specified that the guidelines computation set forth in the agreement “does not
bind the Court or the United States Probation Office with respect to the appropriate
Guideline levels.” (App. at A7) (emphasis in original).

       Prior to sentencing, defense counsel informed 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 agreement’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 court1 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 sentenced Gaines to 210 months’ imprisonment.

       Gaines’s current counsel moved to withdraw and filed 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 requested supplemental briefs from the parties
addressing the claim that the government breached the plea agreement and the


      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

                                          -2-
reasonableness of the sentence in light of United States v. Booker, 543 U.S. 220
(2005).

      We first conclude that the district court 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 disliked the sentence to be imposed, and that he
was not prejudiced by any failure of his counsel at his plea hearing. The court’s
finding that Gaines’s change of heart was “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 argument that he is entitled to resentencing
because the government breached the plea agreement by recommending a two-level
reduction for acceptance of responsibility, rather than the three-level reduction
contemplated by his plea agreement. Gaines did not allege a breach of the plea
agreement at sentencing, restate the terms of the agreement 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 recommendation it had provided,” 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 courses 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, the matter of an alleged breach was not
properly preserved, and we would review the claim only for plain error. United States
v. Olano, 507 U.S. 725, 735-36 (1993). To gain relief under that standard, a defendant

                                         -3-
must show that the district court committed 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 argument that the government’s advocacy at
sentencing was inconsistent with the plea agreement. 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 guilty plea. But Gaines ultimately did not
withdraw his plea, and at the time of his sentencing 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 responsibility, and it is difficult for the
government to show that Gaines breached the agreement by making an unsuccessful
attempt to withdraw his plea. We may assume, therefore, that there was “error” in the
sentencing proceeding.

       Under plain error review, however, Gaines must establish more than a breach
of the plea agreement. We are doubtful that any 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,

                                           -4-
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 that 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 acceptance 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 reduction 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 schedule 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 evidentiary hearing that required the allocation of
scheduling time by the court and the devotion of additional resources by the
government. Under those circumstances, we see no reasonable probability that the
district court would have awarded the three-level adjustment, even if the government
had filed a statement acknowledging the three-level recommendation described in a
plea agreement that was executed before the change in circumstances. Id. at 727
(holding that district court properly denied third-level adjustment where defendant’s
conduct prior to sentencing, including attempt to withdraw guilty plea, was “overly
dilatory and certainly contrary to his admission of guilt[.]”).2

      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 preparation, the court’s allocation of resources
was affected by Worth’s actions: her flight required cancelling her scheduled plea
                                          -5-
       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 district 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 Gaines 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 applicable 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 suggest 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 attorneys 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.
                       ______________________________



hearing, 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 “attempted to withdraw his
plea which required additional hearings and briefs”).
                                          -6-
