United States of America v. Jimmy Dale Graham

United States Court of Appeals
For the Eighth Circuit
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No. 14-3170
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jimmy Dale Graham
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: May 7, 2015
Filed: May 12, 2015
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jimmy Dale Graham directly appeals the judgment imposed by the district
court 1 after he pleaded guilty to a reduced charge of using interstate facilities to
1The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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transmit information about a minor, in violation of 18 U.S.C. § 2425. In a brief filed
under Anders v. California, 386 U.S. 738 (1967), counsel argues that Graham’s plea
was involuntary because he was misinformed about the applicable supervised-release
range; and the court violated due process and Federal Rule of Criminal Procedure
11(c)(1) by participating in plea negotiations at the first sentencing hearing.
After careful review, we reject the challenge to Graham’s plea, as the record
does not establish a reasonable probability that, but for his misunderstanding of the
supervised-release range, he would not have pleaded guilty. See Fed. R. Crim. P.
52(a) (error that does not affect substantial rights must be disregarded); United States
v. Todd, 521 F.3d 891, 896 (8th Cir. 2008) (Rule 11 error affects substantial rights
only where defendant shows reasonable probability that but for error he would not
have pleaded guilty). Graham was informed of the correct supervised-release range
prior to sentencing and did not move to withdraw his plea, even after new counsel was
appointed; he did not assert, in the district court or on appeal, that he would have
proceeded to trial if the plea hearing had fully complied with Rule 11; and he received
a substantial benefit from the plea bargain in the form of a reduced charge with a
much lower sentencing range. See Todd, 521 F.3d at 895-97 (defendant did not show
reasonable probability that but for Rule 11 errors he would not have pleaded guilty,
as he did not move to withdraw plea in district court when he learned of those errors,
and he did not assert on appeal that he would have proceeded to trial if plea hearing
had fully complied with Rule 11). Further, the district court’s comments at the first
sentencing hearing did not constitute impermissible participation in plea negotiations,
as the court merely ensured that Graham understood the potential consequences of
withdrawing his plea, and the court did not negotiate any terms of the agreement or
give an opinion as to the strength of the government’s case. See United States v.
Thompson, 770 F.3d 689, 695-96 (8th Cir. 2014) (district court’s comparison of
sentence defendant faced if he went to trial with sentence if he pleaded guilty,
standing alone, is not improper participation in plea negotiations). An independent
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review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), reveals no
nonfrivolous issues for appeal.
The judgment is affirmed. Counsel’s motion to withdraw is granted, subject to
counsel informing appellant about the procedures for seeking rehearing from this
court and for filing a petition for writ of certiorari.
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