United States v. Donnie M. Young

927 F.2d 1060, 1991 WL 31310

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 9, 1991
• Docket: 90-1294
• Status: Published

Opinions

BEAM, Circuit Judge.

Donnie M. Young entered a plea of guilty to one count of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (1988) and one count of using a firearm in the commission of a felony in violation of 18 U.S.C. § 924(c) (1988). On appeal, Young argues that the district court violated Fed.R. Crim.P. 11(c)(1) by failing to advise him of the statutory maximum and minimum sentences to which he was subject; that the district court abused its discretion in denying Young’s motion to withdraw his guilty plea; and that the sentencing guidelines violate his fifth amendment right to due process. We affirm.

I. BACKGROUND

Together with four co-conspirators, Young was charged in an eighteen-count indictment handed down by a federal grand jury on August 17, 1989. Young initially entered a plea of not guilty to all nine counts against him, but later entered into a plea agreement pursuant to which he would plead guilty to counts one and sixteen and the government would dismiss the remaining counts. At the Rule 11 hearing held on October 5, 1989, Young, with a copy of the indictment in front of him, indicated that he had read the plea agreement and discussed it with counsel. Since Young also told the district court that he understood and was guilty of the offenses charged in counts one and sixteen, the district court concluded that Young understood both the nature of the charges against him and the consequences of his guilty plea. Thus, the district court accepted the plea.

On January 17, 1990, however, Young sent a letter to the district court in which he sought to withdraw his guilty plea. Young alleged that he did not understand the technicalities of the agreement, such as knowingly and wilfully using a firearm, that the elements of the conspiracy were too broad for the offense he committed, and that the government had not dismissed the remaining counts against him as it had agreed to do. On January 31, 1990, counsel filed a written motion to withdraw Young’s guilty plea, essentially alleging the same grounds expressed by Young, with the addition of an unspecified allegation of ineffective assistance of counsel.

The district court considered the motion to withdraw at the beginning of Young’s sentencing hearing on February 9, 1990. Young testified that he had not understood that he would be sentenced for a gun he claimed he did not use, and that he did not know that his offense level would include a calculation based in part on the amount of cocaine distributed by his co-conspirators. He also added that he had been “pressed into” the plea agreement, sentencing transcript at 7, because of the conditions at the county jail where he was being held. Finally, he suggested that counsel had been ineffective in failing to advise him that his plea could be conditioned on a constitutional challenge to the sentencing guidelines. Following Young’s testimony, the district court denied the motion to withdraw “for lack of credible supporting evidence.” Id. at 21.

The court then conducted a sentencing hearing, at which Young was sentenced to 240 months on count one and to the mandatory consecutive sentence of 60 months on count sixteen. The court also fined Young $25,000. This appeal followed.

II. DISCUSSION

Young argues that the district court violated Fed.R.Crim.P. 11(c)(1) by failing to advise him of the statutory maximum and minimum sentences to which he was subject, and by failing to sufficiently inform him of the nature of his offenses. Initially, the government contends that because Young raises these Rule 11(c)(1) arguments for the first time on appeal, this court cannot consider them. We have clearly held, however, that compliance with Rule 11 is properly raised on appeal without first being presented to the district court. United States v. Mims, 440 F.2d 643, 644 (8th Cir.1971). As the Fifth Circuit has noted, claims of noncompliance with Rule 11 are to be resolved on the basis of the record of the plea hearing. “We can therefore adjudicate rule 11 challenges on direct appeal without an initial presentation of the particular arguments to the district court. In accepting a guilty plea, a district court always faces the issue of whether the rule 11 proceedings are adequate.” United States v. Coronado, 554 F.2d 166, 170 n. 5 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). By contrast, Young’s claims of ineffective assistance, that the plea bargain was not kept, and that his plea was involuntary must be presented initially to the district court on a motion to withdraw guilty plea, as they in fact were. United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990); Mims, 440 F.2d at 644.

In his allegations that Rule 11(c)(1) was violated, Young first argues that at no time during the Rule 11 hearing did the district court advise him that count one carried a maximum penalty of life imprisonment or a minimum penalty of ten years, or that count sixteen carried a mandatory five year consecutive sentence. Rule 11(c)(1) requires that the court inform defendant of “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” In this case, the government concedes that “the record demonstrates that the district court did not literally comply with the dictates of Rule 11.” Brief for Appellee at 19.

The government argues, however, that the Rule 11 transcript discloses that Young actually knew the statutory maximum and minimum sentences to which he was subject, and that this violation of Rule 11(c)(1) is harmless error under Rule 11(h). Prior to its amendment in 1983, the automatic sanction for Rule 11 violations under McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969), was to allow defendant to plead anew. See also United States v. Drummond, 903 F.2d 1171, 1173 (8th Cir.1990). Rule 11(h), however, adopted in 1983, provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” Given that the record discloses that Young actually knew the statutory maximum and minimum sentences to which he was subject, we hold that the district court’s violation of Rule 11, if it occurred at all, was harmless error.

At the plea hearing, the district court made certain that Young had the indictment in front of him. Rule 11 Transcript at 16. On its first page, the indictment set forth the statutory maximum and minimum sentences on both counts. At one point, when the court offered to read to Young counts one and sixteen from the indictment, Young specifically declined because he had the indictment before him. Id. at 9-10. The district court also asked Young whether he had read, understood and discussed with counsel the plea agreement, id. at 5-6, which provided in paragraph 10 that “[t]he parties understand and agree that the minimum sentence on Count One, required by statute, is 10 years ... and that the sentence required by statute on Count Sixteen is 5 years ... consecutive.” Young replied that he had read the plea agreement. Rule 11 Transcript at 6. Finally, the prosecutor advised Young during the plea hearing of the statutory minimum sentence on count one and the mandatory sentence on count sixteen. Apparently preempting the district court, the prosecutor addressed Young as follows:

MR. OSSORIO: Although it’s set out in the plea agreement, you understand that under the law on Count 1, the conspiracy count, the Judge must sentence you to at least 10 years, is that your understanding?

MR. YOUNG: Yes, I understand.

MR. OSSORIO: And that under Count 16, again, under the law, with the Judge having no discretion on that, he must sentence you to at least five more years on Count 16?

MR. YOUNG: That's understood, yes.

Id. at 18.¹ Thus, it is clear from the record that Young was actually aware of the statutory maximum and minimum sentences, regardless of the district court’s failure to personally advise him of them.

We are mindful that the advisory committee notes to Rule 11(h) indicate that, because alleged Rule 11 violations must be reviewed from the Rule 11 transcript alone, instances in which Rule 11 violations constitute harmless error will be rare. As an illustrative example of harmless error, the committee notes cite United States v. Coronado, 554 F.2d 166 (5th Cir.), cert. denied, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977), in which Rule 11 was violated “in that some essential element of the crime was not mentioned, but the defendant’s responses clearly indicate his awareness of that element.” Conference Committee Notes to Rule 11. While this circuit has not yet held that Rule 11(h) applies to a Rule 11(c)(1) violation,² we think that this case presents a situation analogous to that in Coronado. The law in several other circuits supports our conclusion.

In United States v. Kearney, 750 F.2d 787 (9th Cir.1984), for instance, the Ninth Circuit applied the harmless error standard of Rule 11(h) to the same violation of Rule 11(c)(1) as in this case. The Ninth Circuit found the error harmless because “it is clear from the record that Kearney was aware at the time he pleaded guilty that he could be subject to penalties as a second offender.... Because Kearney had actual knowledge of the sentencing consequences of his guilty plea, his rights cannot be said to have been substantially affected.” Id. at 791.³ Similarly, in United States v. Peden, 872 F.2d 1303, 1307 (7th Cir.1989), the Seventh Circuit found that the district court’s violation of Rule 11(c)(1) in failing to advise defendant that restitution could be imposed was harmless error under Rule 11(h) where the record disclosed that defendant knew that restitution could be ordered. See also United States v. Vance, 868 F.2d 1167, 1171-72 (10th Cir.1989) (assuming failure of district court to advise defendant of possibility of restitution, such failure was harmless where record disclosed that defendant was aware that restitution could be imposed).

In so applying Rule 11(h), we disagree with United States v. Pierce, 893 F.2d 669 (5th Cir.1990), in which the Fifth Circuit held that the harmless error analysis of Rule 11(h) “does not apply,” id. at 679, to the district court’s failure to advise defendant of the statutory maximum and minimum penalties. The Fifth Circuit reasoned that the district court’s failure to personally address the defendant in open court in compliance with Rule 11(c)(1) violated “Rule ll’s core requirement that the defendant be informed of and understand the direct consequences of his plea,” id., and, thus, that the error required reversal. The court did not discuss whether it appeared from the record that defendant knew of the statutory penalties.

We think that the better analysis is that which accounts for the language of Rule 11(h), that any variance “which does not affect substantial rights shall be disregarded.” A defendant’s decision to plead guilty, made with actual knowledge of the statutory penalties to which the defendant is subject, cannot be affected by the district court’s failure to personally tell the defendant what he already knows. Accordingly, we hold that because the Rule 11 transcript clearly discloses that Young actually knew of the statutory maximum and minimum sentences, the district court’s error, if any, was harmless.

Young also argues that the district court violated Rule 11(c)(1) because it did not sufficiently inform him of the nature of the charges against him. The district court, however, asked Young, as to count one, whether he agreed with the named co-conspirators to distribute an appreciable amount of cocaine. Young replied: “Yes, we did conspire to distribute cocaine.” Rule 11 Transcript at 16-17. As to count sixteen, the court asked Young whether he had used a firearm during and in relation to the conspiracy. He replied: “Yes, I did.” Id. at 17. As in Harvey v. United States, 850 F.2d 388, 396 (8th Cir.1988), in which defendant indicated at the plea hearing that he had read the indictment and understood the charges against him, “[s]uch statements at the plea hearing provide persuasive evidence of an understanding” of the nature of the charges.

[5] More specifically, Young argues that the district court did not tell him that the cocaine and cocaine base distributed by his co-conspirators could be considered at his sentencing. The amount of cocaine to be used in calculating Young’s base offense level, however, has nothing to do with Rule ll’s requirement that Young understand the nature of the offense, for the amount of cocaine involved in the offense is a matter for sentencing. Young’s argument essentially suggests that the district court must notify him at the Rule 11 hearing of the guideline range to which he is subject. We have specifically rejected this argument. United States v. Thomas, 894 F.2d 996, 997 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 1935, 109 L.Ed.2d 298 (1990). Accordingly, we find no violation of Rule 11(c)(1) on these grounds.

III. CONCLUSION

We have considered Young’s other arguments on appeal and find them to be without merit. For the reasons stated, the judgment of the district court is affirmed.

1 . As the government points out in its brief, because 18 U.S.C. § 924(c) provides a mandatory consecutive five-year sentence on count sixteen, the prosecutor arguably overstated the minimum penalty applicable to that count. See Brief for Appellee at 16 n. 2.

2 . In two cases, however, we have employed reasoning similar to that which we adopt in this case. In Travis v. Lockhart, 787 F.2d 409 (8th Cir.1986), we considered defendant’s argument that his guilty plea was not voluntary because he did not understand the nature of the charges or the range of possible punishment. Because the case involved a collateral attack on a plea taken in state court, Rule 11 was not at issue. But as to defendant's claim that the district court had not advised him of the maximum and minimum sentences to which he was subject, we held that the record revealed the argument to be without merit. "Although it does not appear that appellant was expressly advised of the minimum possible sentence for first degree murder, the transcript of the guilty plea proceeding showed that appellant understood and accepted the recommended sentence of twenty years, which is the minimum sentence ... under Arkansas law.” Id. at 410. And in United States v. Drummond, 903 F.2d 1171 (8th Cir.1990), we applied the harmless error analysis of Fed.R. Crim.P. 52(a) to a violation of Rule 32(a)(2), which requires the district court to advise defendant of his right to appeal. Because the record disclosed that defendant actually knew of his right to appeal, the district court’s failure to so advise him did not affect his decision to plead guilty.

3 . We note that this case is not like United States v. Jaramillo-Suarez, 857 F.2d 1368 (9th Cir.1988), in which the Ninth Circuit distinguished Kearney. In Jaramillo-Suarez, the Ninth Circuit declined to apply Rule 11(h) to a violation of Rule 11(c)(1) because it was not clear from the record that the violation did not affect defendant's substantial rights. "It does not appear from the record that Suarez knew the maximum sentence that could be imposed before he entered his plea. Nor does the record show that the district court judge inquired of Suarez whether he had read the presentence report which disclosed a maximum possible federal sentence.” Id. at 1372. By contrast, the Rule 11 transcript is clear in this case that Young actually knew the maximum and minimum penalties to which he was subject.