                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1703
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Minnesota.
Lee Ronald Nesgoda,                    *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 11, 2008
                                Filed: March 23, 2009
                                 ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

       Lee Nesgoda brought this 28 U.S.C. § 2255 petition to vacate or correct his
sentence of 235 months' imprisonment following his plea of guilty to conspiracy to
distribute methamphetamine. The district court granted the petition in part and re-
sentenced Nesgoda to 160 months in prison. Nesgoda appeals the denial of the
remainder of the petition, and we affirm.
I.    BACKGROUND

        Nesgoda was indicted on five counts of conspiracy to distribute
methamphetamine. In March 2006, one week prior to trial, Nesgoda wrote a letter to
the district court suggesting that he was unhappy with counsel's performance, and
letting the court know that he wanted to take a plea offer from the government but the
offer had been rescinded. Shortly after receiving this letter, the district court held a
pretrial conference. At the conference, discussions between the court and Nesgoda
disclosed that an earlier plea offer had included a sentencing range of 188 to 235
months. The plea agreement which was on the table at the time of this hearing,
however, offered a sentencing range of 262 to 327 months. Nesgoda expressed
dissatisfaction with the notion that he would be subject to life imprisonment if he went
to trial, but noted that the current plea deal was not much better than that. The district
court responded to those comments by telling Nesgoda that 262 months was not life,
that he was still a young man, and that he had plenty of time after he got out of prison
"to do all kinds of wonderful things." The district court also noted that after eighteen
years, "you'll be out and I'll still be alive and out to supervise you."

       Shortly thereafter, the court recessed and allowed the parties to discuss plea
negotiations. Two hours later, the hearing reconvened, and the parties informed the
court that they had reached an agreement. As previously noted, the district court
sentenced Nesgoda to 235 months' imprisonment, after granting a downward departure
based on the overstatement of Nesgoda's criminal history. Nesgoda did not directly
appeal his sentence, because in the plea agreement, he waived his right to appeal a
sentence lower than 327 months.

       In his § 2255 petition, Nesgoda claimed he was wrongly sentenced as a career
offender, because one of his prior arson convictions was actually a misdemeanor. The
government conceded this error, and the district court partly granted the § 2255
petition on this basis. The district court denied the remainder of the motion after an

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evidentiary hearing exploring Nesgoda's allegations of a Federal Rule of Criminal
Procedure Rule 11 violation by the district court for improperly participating in plea
negotiations, and ineffective assistance of counsel. Based on the conceded error, the
district court noted that Nesgoda's offense level was 33, his criminal history category
four, and his sentencing range 188 to 235 months. The district court ultimately re-
sentenced Nesgoda to a term of 160 months. Nesgoda appeals the adverse judgment
on the remaining portions of his § 2255 petition.

II.   DISCUSSION

       We review de novo the district court's ruling on the § 2255 petition. United
States v. Hernandez, 436 F.3d 851, 854 (8th Cir. 2006). Because Nesgoda did not
raise the matter at his plea hearing, in this collateral proceeding, we review for plain
error the issue of whether the trial court improperly participated in the plea
negotiations in violation of Rule 11. United States v. Vonn, 535 U.S. 55, 59 (2002);
United States v. Molzen, 382 F.3d 805, 807 (8th Cir. 2004).1 A plain error should be
corrected if the defendant proves there is (1) error; (2) that is plain; (3) that affected
the defendant's substantial rights; and (4) seriously affected the fairness, integrity or
public reputation of the judicial proceedings. Johnson v. United States, 520 U.S. 461,
466-67 (1997). In the context of this case, Nesgoda must demonstrate that there is a
reasonable probability that he would not have pleaded guilty absent the alleged error.
Molzen, 382 F.3d at 807.

      1
        Nesgoda invites us to adopt a less rigorous standard due to the unique situation
that occurs when a district court has allegedly violated Rule 11 by participating in plea
negotiations. Nesgoda is before us on collateral review and, in Vonn, the Supreme
Court noted the more difficult burden on collateral review faced by those who did not
preserve their errors at trial. 535 U.S. at 63-64. So while Nesgoda's policy arguments
in support of a lesser standard of review are somewhat compelling, they are more
appropriately considered in a case before us on direct review. Accordingly, we
decline Nesgoda's invitation and follow our precedent applying a plain error standard
on collateral review for unobjected-to Rule 11 errors. Molzen, 382 F.3d at 807.

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       Rule 11 governs pleas, and among other things, prohibits judicial involvement
in plea negotiations with criminal defendants, stating that "[t]he court must not
participate" in plea discussions. Fed. R. Crim. P. 11(c)(1). We have strictly construed
the rule to require an absolute prohibition upon district court participation in plea
negotiations, either with counsel or in the presence of the defendant. United States v.
Washington, 109 F.3d 459, 463 (8th Cir. 1997).

        Nesgoda cannot meet the rigorous plain error standard in this instance. To start,
Nesgoda initiated contact with the district court, writing him and expressing a desire
to plead guilty. At the resulting pretrial hearing, the district court repeatedly told
Nesgoda that it was up to him to decide whether to take the plea agreement offered by
the government. The district court did not inject his own terms into the plea
agreement, he merely explained the effect of the terms already on the table. Under
these circumstances, while there may or may not have been a technical Rule 11
violation, there certainly was not a violation which satisfies the plain error rule.
Considering that Nesgoda initiated contact with the district court, expressed a desire
to plead guilty, and was under the impression that he faced a life sentence if he went
to trial, there is no reasonable probability that Nesgoda would have proceeded to trial
absent the alleged participation by the district court during the pretrial hearing.

       Nesgoda's primary contention is that the district court "participated" by
advocating a particular sentence, 262 months, if and when Nesgoda accepted the plea,
rendering the district court's "participation" unnecessarily coercive and making it
difficult for Nesgoda to refuse to plead guilty. Nesgoda's argument suggests that 262
months is a figure that the district court came up with on its own. However, at the
pretrial hearing, the government indicated that there was a plea offer in existence
which contemplated a sentencing range of 262 to 327 months. Nesgoda expressed
some dissatisfaction with this number, noting that it was not much different than a life
sentence. The district court's comments about the length of a 262-month sentence
were in direct response to Nesgoda's comments. As we read the transcript, we do not

                                          -4-
find that the district court's comments were coercive, or suggested that any particular
sentence was promised or threatened based on Nesgoda's decision to plead, or not.
Accordingly, we find no plain error on this point.

        Nesgoda also complains that his counsel improperly informed him that he was
a career offender, and that had he known otherwise, he would have gone to trial. In
establishing an ineffective assistance of counsel claim in the guilty plea context, a
defendant must show that counsel's performance was deficient according to the
Strickland v. Washington, 466 U.S. 668, 687 (1984), standard, and also that, but for
counsel's errors, he would not have pleaded guilty but would have instead proceeded
to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

       Assuming that Nesgoda can meet the Strickland performance standard,2 he
cannot meet the Hill prejudice prong for reasons similar to the Rule 11 analysis. The
evidence points to the conclusion that Nesgoda was eager to plead guilty. Had he
known the career offender provisions were not in play, there is a reasonable
probability that Nesgoda was just as likely to plead guilty, not less likely. If the
parties involved had known that Nesgoda did not qualify as a career offender, his
sentencing range in the plea agreement would presumably3 have looked more like the
range that was acceptable to Nesgoda when he wrote the letter to the district court.

      2
       This assumption may not be safe, as defense counsel was one of many,
including the prosecutor, the district court, and the probation officer who prepared the
presentence investigation report (PSR), who believed Nesgoda to be a career offender.
And we have previously held that counsel's incorrect estimate of a sentencing range
was not ineffective assistance of counsel. Thomas v. United States, 27 F.3d 321, 326
(8th Cir. 1994).
      3
       In his March 2006 letter, Nesgoda informed the district court that he wanted
to plead guilty to the government's first plea offer, which was no longer on the table.
The sentencing range in that plea offer was 188 to 235 months. This is the precise
sentencing range calculated by the amended PSR, once the parties realized that
Nesgoda did not qualify as a career offender.

                                          -5-
In light of Nesgoda's eagerness to plead guilty, with the lowest possible sentencing
range, there simply is no reasonable probability that, but for counsel's errors, he would
have proceeded to trial instead of pleading guilty.

III.   CONCLUSION

       We affirm the judgment of the district court.
                       ______________________________




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