United States v. Fabian Barrios-Gutierrez

218 F.3d 1118, 2000 Cal. Daily Op. Serv. 5825, 2000 Daily Journal DAR 7759, 2000 U.S. App. LEXIS 16130, 2000 WL 966914

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2000
• Docket: 99-10148
• Status: Published

Opinions

Opinion by Judge FLETCHER; Dissent by Judge O’SCANNLAIN.

FLETCHER, Circuit Judge:

Fabian Barrios-Gutierrez was indicted for illegal entry after deportation in violation of 8 U.S.C. § 1326(a). He appeals his conviction and sentence. We conclude that the district court violated Federal Rule of Criminal Procedure 11 by failing adequately to inform him of the maximum sentence which he faced at the time of his plea. Therefore, we reverse and remand.

Fabian Barrios-Gutierrez is a citizen of Mexico who re-entered the United States without inspection in June of 1998. He was indicted by a federal grand jury for illegal entry after deportation in violation of 8 U.S.C. § 1326(a). He proceéded to trial before the district court but before any testimony was taken he decided to plead guilty. The district court immediately terminated the bench trial and initiated the required colloquy.

The judge stated that Barrios-Gutierrez was indicted for violating 8 U.S.C. § 1326(a) and asked: “Counsel, is there any dispute that the penalty is the two years counsel has just indicated?” The government responded by saying “possibly the government will be filing and [sic] enhancement to the 1326(a). So as it stands now, it is a[sic] two years.” The judge then stated what the maximum sentence. could be followed by a series of questions:

Court: All right. Thirteen-statute provides that you shall be fined and the fíne cannot be more than $250,000, or in prison for not more than two years, or both of those or any combination of the two of them.

Do you understand that?

The Defendant: Yes, sir, I understand.

The Court: Did you hear what the government just told me that the government thinks that they may have a right to file a notice, that might enhance the sentence you receive.

Did you hear what the prosecutor just told me? .

The Defendant: Yes, I hear, but I don’t understand very clearly what he’s saying.

The Court: I’m not sure that I understand what his intentions are in that respect. Is it the government’s view that—

The government then explained that it need not assert the enhancement in the indictment or before the plea but that if they “choose to file an enhancement, we just have to give notice that we might do so ... although I believe the two-year max applies to the 1326(a), I think it should be understood that there’s also the possibility of the enhancement being filed....” The judge then stated:

I’m not going to take a .position now whether the government is right or wrong about what they’ve said. But I want to be sure that you understand that the government is taking the position here today and now that they may, which I presume also means they may not, but they certainly may file a notice that requests that I enhance at the sentencing the sentence you receive based upon subsequent information they will provide me so that the sentence you would receive would exceed two years. That’s the position they’re taking and I understand-well, I want to be sure yo [sic] understand that.

After Barrios-Gutierrez replied that he heard what the. government had said, the judge said that if (b)(2) applies the sentence could be up to 20 years and Barrios-Gutierrez again said that he understood. Later in the proceeding, the Appellant’s attorney objected to the government’s claim that it could increase the punishment beyond a two year maximum and the judge responded by stating:

The Court: I thought I tried to make clear as I was informing your client that is the position of the government and I take no position now as to which of the two parties is correct, whether you are or whether the government is. I may or may not, have to resolve that at a sentencing hearing depending upon what the government may do.

Mr. 'Barrios-Gutierrez, did you hear everything your lawyer told me and my response to him?

The Defendant: Yes, I did.

The district court accepted Barrios Gutierrez’s plea. Immediately afterwards the government announced its intention to seek the enhancement. Barrios-Gutierrez was not offered the opportunity to withdraw his plea. Subsequently at the sentencing hearing, the district court sentenced Barrios-Gutierrez to a term of 57 months imprisonment followed by 36 months of supervised release.

The Appellant argues that the district court did not adequately inform him about the maximum sentence which he faced. We review the legality of a sentence de novo. United States v. Garcia, 112 F.3d 395, 397 (9th Cir.1997). We review a Rule 11 error de novo but this review is limited to the record of the plea proceeding, cf. United States v. Odedo, 154 F.3d 937, 940 (9th Cir.1998) (limiting review to the proceeding at issue and rejecting review of a prior proceeding).

The Federal Rule of Criminal Procedure 11 requires that the court address the defendant before accepting a guilty plea and determine that the defendant understands “the maximum possible penalty provided by law.” Fed.R.CrimJP. 11(c). An essential requirement of Rule 11(c) is “that the defendant be placed in a position where his plea will be intelligent and informed.” United States v. Gastelum, 16 F.3d 996, 999-1000 (9th Cir.1994). The district court must directly address the defendant and state the maximum sentence; it is insufficient for counsel to do so. United States v. Odedo, 154 F.3d at 940. In Odedo, we held that previous discussions between a defendant and his attorney did not adequately replace the role of the district court in the process of accepting a plea. Id.

In this case, the district court never unambiguously stated the actual maximum sentence which Barrios-Gutierrez faced. The most definitive statement by the district court was its initial statement that Barrios-Gutierrez could face a prison term “for not more than two years.” After the government suggested that the sentence could be enhanced beyond two years, the district court twice declined to take a position on whether enhancement was possible under the law. Although the government was correct as to what the maximum possible sentence was, this fact does not make Barrios-Gutierrez’s plea intelligent and informed. The district court never made an authoritative statement informing Barrios-Gutierrez that the maximum sentence was 20 years.¹

The Supreme Court established a per se rule that any noneompliance with Rule 11 was reversible error. McCarthy v. United States, 394 U.S. 459, 463-64, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Although this rule was modified with the adoption of Rule 11(h), so that technical violations of Rule 11 no longer always require reversal, the mandatory advisements required by Rule 11 have been reaffirmed by us subsequent to the amendment. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1370 (9th Cir.1988). We have interpreted 11(h) to apply only to “a minor or technical violation of Rule 11.” United States v. Graibe, 946 F.2d 1428, 1433 (9th Cir.1991).

In Jaramillo-Suarez, 857 F.2d at 1372-73, we held that it is not harmless error when the district court fails adequately to advise the defendant of the maximum sentence faced even when counsel referred to the maximum sentence. In United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993), we held that “Rule 11 still mandates that the judge tell the defendant the ‘maximum possible penalty.’ The defendant should not receive a sentence longer than the one discussed at the plea hearing.” In that case, the judge failed to mention the possibility of a term of supervised release when accepting the plea. Similarly, in Carter v. McCarthy, 806 F.2d 1873, 1376 (9th Cir.1986), we held that failure to inform the accused of a mandatory parole term prevented the guilty plea from being voluntary and intelligent. The judge in this case never told Barrios-Gutierrez that the maximum possible sentence he faced was twenty years. The statements by the government did not make this error harmless.

The government argues that under our holding in United States v. Turner, 881 F.2d 684, 687 (9th Cir.1989), we should conclude that Rule 11 was not violated here. The government is wrong. The defendant in Turner was properly informed of the maximum penalty he faced. His claim was that he should be told definitively what sentence he would receive under the guidelines: “The record indicates that Turner was informed and aware that the maximum penalty for bank robbery was twenty years.” Id. at 686. Thus, in Turner we did not address the question at issue here where the defendant was not informed by the district court of the maximum possible sentence. The government also argues that Barrios-Gutierrez’s statements in response to the district court’s questioning show that he understood what the actual maximum sentence was. The government relies on Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.1986), for the proposition that statements by a criminal defendant contemporaneous with the plea should be accorded great weight. Nonetheless, despite Chizen’s signed waiver in that case, the court held that counsel’s misrepresentation about the plea made the plea involuntary.

We next turn to the question of the appropriate remedy. In United States v. Roberts, 5 F.3d at 369, we held that the “defendant should not receive a sentence longer than the one discussed at the plea hearing” instructing the district court that it had a choice: to reduce the sentence to the maximum which the district court had stated at the plea hearing or to allow the defendant to replead. Id. at 370. In Carter, 806 F.2d at 1374, we rejected the imposition of an additional term which the defendant had not been advised of by the district court. Accordingly, we reduced the sentence to the maximum sentence as to which the defendant had been informed at the time of the plea. Id. at 1377.

Rule 11 fundamentally requires that the defendant understand the “maximum possible penalty provided by law.” Fed. R.Crim.P. 11(c). Only in this way can the defendant be “placed in a position where his plea will be intelligent and informed.” Gastelum, 16 F.3d at 999-1000. Since the district court never authoritatively stated that Barrios-Gutierrez faced a maximum sentence of twenty years, he did not make an intelligent and informed plea knowing the maximum possible penalty he faced. For this reason, to allow Barrios-Gutierrez to replead clearly would be an appropriate remedy. The district court refused to resolve the question of whether the sentence could be enhanced beyond the two year maximum up to twenty as the government contended. Consequently any sentence imposed without repleading should not exceed the two year maximum. We leave it to the district court to determine which of these remedies should apply.²

For the foregoing reasons, we reverse the district court’s judgment and remand for further proceedings consistent with this disposition.

REVERSED and REMANDED.

1 . Contrary to the dissent's assertion, we do not require the court to inform the defendant of the actual sentence when accepting a guilty plea. We simply hold that the district court must inform the defendant of the "maximum possible penalty provided by law” as required by Rule 11.

2 . The dissent mistakenly suggests that the defendant was the source of the confusion in this case. Be that as it may, the responsibility for properly informing the defendant of the maximum sentence clearly lies with the district court, not with either the government or defense counsel.