United States v. Fabian Barrios-Gutierrez

255 F.3d 1024, 2001 Cal. Daily Op. Serv. 5629, 2001 Daily Journal DAR 6881, 2001 U.S. App. LEXIS 14838, 2001 WL 740606

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 2001
• Docket: 99-10148
• Status: Published

Opinions

Opinion by Judge O’SCANNLAIN; Dissent by Judge BERZON

O’SCANNLAIN, Circuit Judge:

We must decide whether the trial judge must formally determine at the plea colloquy whether a statutorily-authorized sentence enhancement will apply as a matter of law, notwithstanding the defendant’s acknowledgment in open court that he understands the maximum possible penalty including such potential enhanced sentence.

I

Fabian Barrios-Gutierrez was indicted for illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326(a). He waived his right to a jury and proceeded to trial before the district court. After the first witness was sworn, but prior to any testimony, defense counsel informed the court that Barrios-Gutierrez wished to change his plea and to plead guilty to the indictment. Although the plea change came as a surprise to the district court and to the prosecution, the trial judge terminated the trial and immediately proceeded with the Rule 11 colloquy without objection.

The district court asked counsel for the government whether there was any dispute that the maximum sentence was two years. The Assistant U.S. Attorney responded, “possibly the government will be filing an enhancement to the 1326(a). So as it stands now, it is a[sic] two years. But that’s subject to us filing a notice for enhancement.” The district court then stated in the presence of the defendant and all counsel:

The Court: 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 ... so that the sentence that you would receive would exceed two years. That’s the position they’re taking and I understand — well, I want to be sure that you understand that.

The prosecution then reiterated its position and added that “with the (b)(2) enhancement if it so applies, it’s a maximum of 20 years.” Barrios-Gutierrez responded that he heard what the government said. Further, defense counsel reassured the court that “Mr. Barrios is well-aware of the significance of (b)(1) and (b)(2).” The district court then informed Barrios-Gutierrez:

The Court: And so if (b)(2) applies in this case, the sentence could be, under the statute, up to 20 years and a fine of up to $250,000 or both or any combination of the two. Understand that?

The Defendant: Yes, I understand.

Following the colloquy, and having found that Barrios-Gutierrez understood that his maximum possible imprisonment could be twenty years, the district court accepted Barrios-Gutierrez’ guilty plea. Immediately thereafter, the prosecution announced its intention to seek the sentencing enhancement under § 1326(b)(2). At the subsequent sentencing hearing, more than three months later, the district court formally determined that § 1326(b)(2) applied and sentenced Barrios-Gutierrez to a term of 57 months’ imprisonment followed by 36 months of supervised release.

This timely appeal from the sentence followed.

II

Barrios-Gutierrez argues that the district court violated Federal Rule of Criminal Procedure 11 by failing adequately to inform him of the maximum sentence that he faced.

A

Rule 11(c) requires that before accepting a plea of guilty the court must address the defendant personally in open court and “inform the defendant of, and determine that the defendant understands, ... the maximum possible penalty provided by law....” Fed.R.Crim.P. 11(c)(1). We have previously held that Rule 11 “mandates that the judge tell the defendant the maximum possible penalty.” United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993) (internal quotations omitted). The purpose of Rule 11 is to ensure “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). In other words, Rule 11 seeks to make certain that the defendant has adequate information (including the maximum possible sentence that he could receive for the charged crime) with which to make an informed decision.

The sentencing provision of 8 U.S.C. § 1326(a), the statute of conviction, states that a violation of that subsection carries a maximum two-year sentence.¹ Several months prior to Barrios-Gutierrez’ indictment, however, the Supreme Court made clear that the penalty for a violation of § 1326(a) was not limited to the two-year maximum, but may be increased by sentence enhancements for recidivism contained in § 1326(b)(1) and (b)(2). See Almendarez-Torres v. United States, 623 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The Court also clarified that reference to § 1326(b) need not be included in the indictment as an element of the offense nor proven to the jury. See id. Pursuant to § 1326(b)(2), once an alien is removed or deported following a conviction for an aggravated felony, he is thereafter, upon a subsequent illegal reentry, subject to a maximum twenty-year sentence for a § 1326(a) violation. See id. at § 1326(b)(2). Prior to his removal, Barrios-Gutierrez was convicted for theft of an automobile in the state of Texas. Barrios Gutierrez does not contest that such conviction was for an aggravated felony nor that § 1326(b)(2) applies to him. There can be no doubt, therefore, that the maximum possible penalty that he could have received was twenty years.

The confusion at the Rule 11 plea colloquy was understandable given the surprise post trial-commencement change of plea and the recency of the controlling Supreme Court decision yet to be reviewed by the district court. Although not having expected, and therefore not prepared for a plea hearing, the court terminated the trial and immediately proceeded with the Rule 11 colloquy as requested by the defendant. The government, possibly also not prepared to discuss sentencing, advised the court that it believed a recent Supreme Court decision allowed for a sentence of up to twenty years under § 1326(b)(2). Adding to the confusion, the government did not definitively state that it would, in fact, seek an enhancement, until immediately after the plea was accepted. Defense counsel, perhaps unaware of Almendarez-Torres, erroneously urged that because jeopardy had attached, the indictment could not be amended to include a § 1326(b)(2) charge and the maximum period mf imprisonment would therefore remain a period of two years. Nevertheless, once the defendant answered, “Yes, I understand,” after the court told him that imprisonment could be up to twenty years, there can be no doubt that he was made aware that the “maximum possible penalr ty” was twenty years, not two years. This result comports entirely with the function of Rule 11.

At every plea hearing,² a great deal of uncertainty remains as to what the sentence will be: the applicability of sentence enhancements or downward adjustments; the contents and recommendations, of the Presentence Investigation Report; either party’s objections to the report and the judge’s rulings thereon; and the effect of the sentencing guidelines. See Fed. R.Crim.P. 11(c) advisory committee’s note (1989). Not inconsistent with this, uncertainty is whether a sentence enhancement pursuant to § 1326(b)(2) applies. Whether an enhancement applies as a matter of fact, as a matter of law, or whether its application is merely a possibility are distinctions without significance at a Rule 11 hearing. The essential ingredient is notice of “the maximum possible penalty provided by law....” Fed.R.Crim.P. 11(c). The precise sentence up to the maximum is typically determined by the trial court at a formal sentencing hearing a month or more later.

Rule 11 does not require that the district court announce authoritatively the actual maximum sentence at the plea-taking stage.³ On the contrary, it would belie the plain meaning of Rule 11(c). It includes the word “possible,” which means “being something that may or may not occur.” Webster’s Ninth New Collegiate Dictionary 918 (1986). Having been informed by the court that if § 1326(b)(2) applied his maximum possible sentence would be twenty years, Barrios-Gutierrez was informed at the time he pleaded guilty that he “may or may not” receive the maximum sentence of twenty years. We are satisfied, therefore, that Barrios-Gutierrez had the necessary information to enter an informed and intelligent plea. The district court met the requirements of Rule 11(c) by informing Barrios-Gutierrez that he faced a maximum twenty-year sentence and by determining that he understood this to be the maximum possible penalty.

B

None of the cases relied on by Barrios-Gutierrez stands for the proposition that the district court had to determine whether the sentence enhancement of § 1326(b)(2) applied prior to taking Barrios-Gutierrez’ guilty plea. United States v. Odedo, 154 F.3d 937 (9th Cir.1998), dealt with a much more problematic situation. There, at the Rule 11 hearing, the district court informed the defendant neither of the charges in the indictment nor of the maximum possible penalty. Id. at 939. The court, instead, relied on the defendant’s earlier discussions with his counsel as a basis for accepting his guilty plea. Id. We held that previous discussions between a defendant and his counsel do not satisfy Rule 11. Id. at 940. But that is not the case here. Whatever discussion Barrios-Gutierrez may have had with his counsel regarding the maximum penalty, the district court told the defendant directly that if § 1326(b)(2) applied, he faced up to a twenty-year sentenced.⁴

Similarly, dictum in Libretti v. United States, 516 U.S. 29, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995), is unhelpful to Barrios-Gutierrez. In that case, the Court found the plea agreement and plea colloquy adequate, but stated that “a district judge must not mislead a defendant ... nor should the court permit a defendant’s obvious confusion ... to stand uncorrected.” Id. at 51, 116 S.Ct. 356. Contrary to Barrios-Gutierrez’ contention, the court did not mislead the defendant nor leave uncorrected any obvious confusion. While Barrios-Gutierrez may have begun the plea colloquy believing that the maximum sentence to which he could have been sentenced was two years, the district court clearly dispelled this belief. In contrast to Libretti, where the district court did not “spell out” the forfeiture procedures to the defendant, the district court here carefully told Barrios-Gutierrez that if § 1326(b)(2) applied he would face a twenty-year maximum sentence. After some initial confusion, Barrios-Gutierrez repeatedly stated that he understood that he faced a possible twenty-year maximum sentence. Rule 11 requires no more.

III

As the district court informed Barrios-Gutierrez that he might face twenty years in prison and then correctly resolved the applicability of the enhancement at sentencing, we affirm the 57-month sentence actually imposed.

AFFIRMED.

1 . It should be noted, however, that subsection (a) begins with the words, "Subject to subsection (b) of this section...."

2 . Except for pleas pursuant to plea agreements with specific, binding sentences under Fed.R.Crim.P. 11(e)(1)(C).

3 . Like determination of a defendant’s Criminal History category under U.S.S.G. § 4A1.1, whether § 1326(a) or (b) actually applies depends on the later confirmation of whether or not the defendant has been convicted of the requisite felony.

4 . In fact, the defendant’s previous discussions with counsel contained erroneous information — counsel believed that once jeopardy attached, the government could not seek an enhancement under § 1326(b)(2). The district court did not rest on this misinformation, however. It informed Barrios-Gutierrez that § 1326(b) might apply and that, if it did, then he faced a twenty-year maximum sentence.