Incomplete Discovery and Post-Plea Misconduct: The Fourth Circuit’s Materiality Standard for Rule 11(d)(2)(B) Withdrawals and Flexibility in § 3E1.1 Acceptance-of-Responsibility Credits

Introduction

United States v. David Milam, Nos. 23-4527/4528/4529, decided on 13 August 2025, presented the Fourth Circuit with a trilogy of issues that routinely surface in federal criminal practice: (1) whether a defendant may withdraw guilty pleas under Federal Rule of Criminal Procedure 11(d)(2)(B) when the Government inadvertently discloses an incomplete search-warrant package; (2) whether a district court may deny a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 after the Government has recommended the reduction and failed to object to the presentence report; and (3) whether a 300-month, below-Guidelines sentence is substantively unreasonable.

The appellant, David Milam, leader of the Aryan Kings white-supremacist gang, had entered guilty pleas in three separate cases—felon-in-possession of a firearm, a large-scale methamphetamine/heroin conspiracy, and assault on officers—only to attempt a partial retreat once new counsel discovered that every other page of the warrant affidavit had been omitted from early discovery.

Judge Niemeyer, writing for a unanimous panel joined by Judges Richardson and Floyd, affirmed the district court on all points, thereby crystallising two practical rules:

An inadvertent discovery defect justifies withdrawal of a plea only if the missing information is material—i.e., would likely have altered the defendant’s decision to plead guilty.
A court retains independent authority to withhold § 3E1.1 credit when a defendant engages in serious post-plea misconduct, regardless of prior Government concessions or a silent presentence report.

Summary of the Judgment

Withdrawal of Pleas: The district court correctly held that the omitted pages were not material; the complete affidavit only strengthened probable cause and would not have altered Milam’s strategy to plead quickly to avoid potential life exposure.
Acceptance of Responsibility: The court could entertain the Government’s belated objection because the defence voiced no surprise and Milam’s post-plea drug-trafficking and jail assaults were inconsistent with acceptance of responsibility.
Substantive Reasonableness: A 300-month sentence, 60 months below the Guidelines range of 360-life, was well within the court’s discretion given Milam’s leadership role, violent tendencies, extensive drug weight, and fresh criminal conduct.

Analysis

Precedents Cited and Their Influence

Brady v. United States, 397 U.S. 742 (1970) – Reaffirmed that a guilty plea is “grave and solemn” and presumed valid after a proper Rule 11 colloquy.
United States v. Moore, 931 F.2d 245 (4th Cir. 1991) – Provided the six-factor test for withdrawal of pleas; the panel focused on the first (knowing/voluntary) and fourth (close assistance of counsel) factors.
Lambey, 974 F.2d 1389 (4th Cir. 1992) (en banc) – Cited for the “strong presumption” of plea finality.
Garrett, 141 F.4th 96 (4th Cir. 2025) – Clarified that only material government misconduct may disturb an otherwise valid plea.
Franks v. Delaware, 438 U.S. 154 (1978) – Milam claimed potential relevance; the court found the argument speculative and unsupported.
Kidd, 12 F.3d 30 (4th Cir. 1993) – Allowed denial of § 3E1.1 credit where the defendant continued criminal conduct after pleading.
Aidoo, 670 F.3d 600 (4th Cir. 2012) – District court may implicitly extend deadlines for good cause when defendant is not prejudiced.
Perry, 92 F.4th 500 (4th Cir. 2024) and Fitzpatrick, 126 F.4th 348 (4th Cir. 2025) – Confirmed the presumption of reasonableness for within-Guidelines (and by implication, below-Guidelines) sentences.

Legal Reasoning

Materiality Under Rule 11(d)(2)(B)
• The court asked whether the complete affidavit would have created a “reasonable probability” of a different outcome.
• Missing pages actually strengthened probable cause, undermining any suppression theory.
• Objective evidence (defence counsel’s testimony, Milam’s desire to plead to avoid life exposure) confirmed immateriality.
Competent Assistance of Counsel
• Even assuming counsel missed the scanning error, ineffective assistance requires prejudice. No prejudice existed because any suppression/franks motion was implausible.
§ 3E1.1 Discretion
• Guidelines give the court, not the parties, final say on acceptance credits.
• Post-plea obstruction (smuggling drugs into jail, assaults on deputies) is antithetical to acceptance of responsibility.
• Government’s late objection caused no unfair surprise; defence anticipated the dispute.
Substantive Reasonableness
• Court weighed § 3553(a) factors: seriousness, deterrence, protection of the public, and specific deterrence due to Milam’s recidivism.
• A 60-month downward variance already accounted for mitigating factors (family ties, work history).

Impact of the Decision

Plea-Withdrawal Litigation: Defendants must now make a specific, evidence-based showing that undisclosed discoverable material would have changed their plea calculus. A mere discovery defect, without more, will rarely suffice.
Discovery Practices: Prosecutors will double-check production quality, but minor inadvertent errors will not automatically unravel pleas if immaterial.
Acceptance-of-Responsibility Strategy: Defence counsel must advise clients that post-plea conduct is critical; government promises are revocable, and courts may act sua sponte.
Presentence Procedure: The decision implicitly relaxes Rule 32 timing when the defendant does not object, reinforcing that substance trumps form where prejudice is absent.
Guidelines Sentencing: Confirms that substantial variances (here, −60 months) are sustainable when balanced, even with severe criminal histories.

Complex Concepts Simplified

Rule 11(d)(2)(B): Lets a defendant withdraw a plea before sentencing if he presents a “fair and just reason.” Think of it as a narrow escape hatch—once the plea colloquy is sound, the hatch is nearly shut.
Materiality (in this context): Information is “material” if there is a reasonable probability that a defendant would have rejected the plea and gone to trial had he known it.
Franks Hearing: A special evidentiary hearing where a defendant tries to show that police lied or recklessly omitted facts in a warrant affidavit. Success is rare and requires both deliberate falsehood and probable-cause insufficiency after excising tainted statements.
U.S.S.G. § 3E1.1: Allows up to a three-level reduction for defendants who “clearly demonstrate” acceptance of responsibility. Post-plea criminality almost always negates it.
Substantive vs. Procedural Reasonableness: Procedural looks at how the sentence was imposed (calculations, explanations). Substantive looks at length: is it too harsh or too lenient in light of the statutory factors?

Conclusion

United States v. Milam reinforces the finality of guilty pleas and the centrality of materiality in assessing discovery missteps. It also re-asserts judicial autonomy over acceptance-of-responsibility determinations when a defendant’s conduct belies remorse. Practitioners should read the case as a cautionary tale: hurried pleas are hard to unwind; discovery glitches must be shown to have mattered; and post-plea behavior is scrutinised both for sentencing and for preserving any guideline concessions.

Key Takeaways:

Incomplete discovery must be material to undo a guilty plea; immaterial omissions are irrelevant.
Counsel error, without prejudice, does not rescue a plea.
§ 3E1.1 credit is fragile—post-plea misconduct can strip it away even if the Government once agreed.
Below-Guidelines sentences are not inherently vulnerable; a 60-month variance was sustained because the district court tied it to the § 3553(a) factors.

The Milam decision thus stands as a robust precedent on the limits of plea withdrawal and the elasticity of acceptance-of-responsibility credits, likely guiding district courts within the Fourth Circuit—and persuasively elsewhere—for years to come.