Appeal from the United States District Court for the Western District of Wisconsin. No. 99 CR 21--John C. Shabaz, Judge.
Before Coffey, Ripple and Kanne, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge
Pursuant to an agreement with the Government, Mark Fuller pled guilty to "check kiting" in violation of 18 U.S.C. § 1014. He later filed a motion to withdraw his guilty plea. The district court denied the motion. Mr. Fuller submits that the attorney who represented him at his hearing on the motion had an actual conflict of interest and, as a result, rendered ineffective assistance of counsel; he seeks a new hearing on the motion to withdraw his guilty plea with "conflict-free" counsel. Because the record affirmatively demonstrates that counsel's performance at the original hearing was not inadequate, the Supreme Court's recent decision in Mickens v. Taylor, 122 S. Ct. 1237 (2002), requires that we affirm the judgment of the district court.
Mr. Fuller pled guilty pursuant to an agreement in which the Government promised to recommend a sentence of probation "[i]f under the sentencing guidelines, [Mr. Fuller] qualifie[d] for a sentence of straight probation." R.23. However, a violation of 18 U.S.C. § 1014 is a Class B felony and, Mr. Fuller therefore was ineligible for probation under 18 U.S.C. § 3561(a)(1) and § 5B1.1(b)(2) of the United States Sentencing Guidelines. Mr. Fuller's attorney at the time did not inform Mr. Fuller prior to the entry of his plea of guilty that, despite the provision in the plea agreement, he was ineligible for probation. The agreement did disclose to Mr. Fuller, however, that his offense carried a maximum penalty of 30 years' imprisonment and warned him not to base his guilty plea on promises or predictions about the severity of his sentence.
Mr. Fuller's plea hearing met the requirements of Rule 11 of the Federal Rules of Criminal Procedure. The district court asked whether Mr. Fuller was satisfied with his counsel's representation, whether he had discussed the plea agreement with counsel, and whether he understood the terms of the agreement. Mr. Fuller answered affirmatively. He further represented to the court that he was pleading guilty voluntarily and understood the consequences of his plea. The judge questioned Mr. Fuller specifically about his understanding of the impact of his plea on his sentence:
THE COURT: Do you understand that guideline computation discussions are not part of the plea agreement. You should not rely on the possibility of a particular sentence based on any guideline computation discussions between your attorney and the United States. Is that your understanding, sir?
THE COURT: Now is it your understanding that when you signed this agreement you acknowledged that the United States had made no promises or guarantees concerning the sentence to be imposed?
DEFENDANT FULLER: Yes, sir.
THE COURT: They've made a recommendation but no promise or guarantee. Is ...