Submitted: April 4, 2017
from United States District Court for the District of North
Dakota - Bismarck
WOLLMAN and LOKEN, Circuit Judges, and ROSSITER, [*] District Judge.
Ladue, Jr. was charged with two counts of aggravated sexual
abuse of a child under twelve years of age in Indian country
in violation of 18 U.S.C. § 2241(c). Avoiding the
statute's mandatory minimum sentence of thirty years in
prison, Ladue agreed to plead guilty to two counts of
aggravated sexual abuse in violation of 18 U.S.C.
§§ 2241(a)(1), which carries no minimum sentence.
At his change-of-plea hearing, Ladue admitted sexually
abusing two young daughters of former girlfriends. The
district court accepted the guilty plea, finding that
Ladue was competent, clearly and fully understood the
charges, and entered a knowing and voluntary plea. Several
weeks later, after a hearing, the court denied Ladue's
motion to withdraw his plea. At sentencing, the court varied
downward and sentenced Ladue to 240 months in prison. He
appeals, arguing the court erred in denying his motion to
withdraw the plea because the court violated Rule 11(b)(1)(I)
of the Federal Rules of Criminal Procedure by failing to
advise at the change-of-plea hearing that Ladue was pleading
guilty to a Class A felony, and thus was not eligible for a
sentence of probation. See 18 U.S.C. §
3561(a)(1). Reviewing this contention for plain error and the
denial of a motion to withdraw for abuse of discretion,
see United States v. Green, 521 F.3d 929, 931 (8th
Cir. 2008), we affirm.
Ladue's change-of-plea hearing, the district court
engaged in what Ladue admits was an extensive plea colloquy.
Ladue confirmed that he had read the entire Plea Agreement,
had received sufficient time to review it with his attorneys,
and had not been forced, threatened, or intimidated to plead
guilty. When Ladue requested clarification as to who would
decide his sentence, the court engaged in a thorough
explanation of the Sentencing Guidelines, advising Ladue that
his advisory guidelines range was 360 months to life based on
the offense and Ladue's criminal history, that the
maximum penalty for each offense was life imprisonment, and
that the court could, but need not, follow the
government's recommendation of a twenty-year prison term.
When the court asked if he understood, Ladue responded,
"Yes, sir." The court also referenced the facts of
the offenses as stated in the Plea Agreement. Ladue stated
that he did not disagree with any of the fact statements.
Government counsel stated that forensic examinations of the
victims confirmed these facts. Ladue's counsel said the
government hit the "nail on the head with most of the
facts." At that point, Ladue stood up and apologized to
his two victims in the courtroom, stating, "With my
whole heart I am sorry." The court accepted Ladue's
weeks after pleading guilty, Ladue sent the court a letter
seeking to withdraw his guilty plea because he did not
"understand" how it worked. He complained that the
Federal Public Defender's Office changed his attorney
days before the Plea Agreement was signed and submitted.
According to Ladue, he simply repeated the words new attorney
Ryan Costello told him to say by pleading guilty. At the
outset of the hearing on the motion to withdraw, the court
informed Ladue that he had "some convincing to do"
after admitting in open court that he committed these sexual
offenses and apologizing to the victims for his conduct.
Ladue asserted he did not have enough time to review the Plea
Agreement and did not understand it. The court noted this
assertion was directly contrary to Ladue's answers at the
change-of-plea hearing. In addition, after pleading guilty,
Ladue provided the Probation Office a detailed admission of
motion-to-withdraw hearing, Ladue complained that his first
attorney, who withdrew days before the Plea Agreement was
signed, provided possible sentencing ranges that Ladue might
receive if he pleaded guilty; the low end of some ranges
included probation. Ladue's second attorney, Costello,
told Ladue before the change-of-plea hearing that he would
not ask for probation if Ladue pleaded guilty. Costello said
he told Ladue probation might be "technically possible
[but] wouldn't be something the Court would even
entertain." Ladue admitted to the court that he recalled
denying Ladue's motion to withdraw his plea, the district
court noted that it had put its "full trust into the
responses to the questions" asked of Ladue at the
change-of-plea hearing. Carefully reviewing the transcript of
that hearing, the court stated, "I don't know what
more any judge could do at a change of plea hearing than the
litany of questions that I asked of you and which to me
revealed that you had a clear understanding of what the Plea
Agreement was, [and] what the consequences were of pleading
guilty." The court said it expected that, if Ladue had
not "fondled two young girls, " he would have said
so when asked by the court.
appeals the denial of his motion to withdraw his guilty plea.
Prior to sentencing, a district court may permit withdrawal
if the defendant "can show a fair and just reason for
requesting the withdrawal." Fed. R. Crim. P.
11(d)(2)(B). "There is no right to withdraw;
the plea of guilty is a solemn act not to be disregarded
because of belated misgivings about its wisdom."
Green, 521 F.3d at 931 (quotation omitted).
"When a defendant has entered a knowing and voluntary
plea of guilty at which he acknowledged committing the crime,
the occasion for setting aside a guilty plea should seldom
arise." United States v. Morrison, 967 F.2d
264, 268 (8th Cir. 1992) (quotation omitted).
does not raise on appeal the arguments made to the district
court in support of this motion -- that he did not understand
the plea and was coerced by counsel into pleading
guilty. Rather, he argues the district court erred
in denying the motion because the court failed to advise him
at the change-of-plea hearing that, by pleading guilty to
aggravated sexual abuse, a Class A felony, see 18
U.S.C. § 3559(a)(1), he would be ineligible for a
sentence of probation, see 18 U.S.C. §
3561(a)(1) ("A defendant . . . may be sentenced to a
term of probation unless . . . the offense is a Class A or
Class B felony and the defendant is an individual.").
Ladue argues the court was required to explain this because
Rule 11(b)(1)(I) provides that, prior to accepting a plea,
"the court must inform the defendant of, and determine
that the defendant understands, . . . any mandatory minimum
penalty." As Ladue failed to raise this objection to the
district court, our review is for plain error. See United
States v. Haubrich, 744 F.3d 554, 558 (8th Cir. 2014).
We reject Ladue's contention that ineligibility for
probation is a "mandatory minimum penalty" within
the meaning of Rule 11(b)(1)(I). Section 3561(a)(1) does not
impose a minimum sentence; it permits probation in certain
circumstances. See United States v. Lahey, 186 F.3d
272, 274 (2d Cir. 1999); United States v. Elliott,
971 F.2d 620, 621-22 (10th Cir. 1992); cf. United States
v. Zamora-Andrade, 544 F.App'x 438, 439 (5th Cir.
2013). Rule 11(b)(1)(I) requires a court to
inform defendants of minimum sentences that it must
impose, not sentences that it cannot impose. If
construed as Ladue argues, Rule 11(b)(1)(I) would conflict
with § 2241(a), which states that an aggravated sexual
abuse offender "shall be fined under this title,
imprisoned for any term of years or life, or both." If
§ 3561(a)(1) imposed a mandatory prison term,