RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rose No. 02-5163 ELECTRONIC CITATION: 2004 FED App. 0045P (6th Cir.) File Name: 04a0045p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Anthony Martinez, FEDERAL DEFENDER FOR THE SIXTH CIRCUIT SERVICES OF EASTERN TENNESSEE, INC., _________________ Chattanooga, Tennessee, for Appellant. Reginald Rose, III, Montgomery, Alabama, pro se. UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 02-5163 v. _________________ - > , KAREN NELSON MOORE, Circuit Judge. The REGINALD CHARLES ROSE , - Defendant-Appellant, Reginald Charles Rose, III (“Rose”), III, - appeals his convictions and sentence. Rose was convicted of Defendant-Appellant. - conspiring to distribute fifty grams or more of - methamphetamine mixture, in violation of 21 U.S.C. §§ 846 N and 841(b)(1)(B), and of knowingly and intentionally Appeal from the United States District Court carrying a firearm during and in relation to a drug trafficking for the Eastern District of Tennessee at Chattanooga. crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro No. 01-00061—Curtis L. Collier, District Judge. se brief, Rose raises several claims of error in the district court’s acceptance of his guilty pleas. Most of these errors Submitted: September 9, 2003 arise from discrepancies between the descriptions of the charges in Counts One and Three as stated in the Superseding Decided and Filed: February 11, 2004 Indictment and as stated in his written plea agreement. Rose’s court-appointed counsel also filed an appellate brief Before: MOORE and GILMAN, Circuit Judges; MILLS, and a motion to withdraw pursuant to Anders v. California, District Judge.* 386 U.S. 738 (1967), stating that he has found no meritorious grounds for appeal but nonetheless raising two possible claims of error in the calculation of Rose’s sentence. For the reasons set forth below, we VACATE Rose’s conviction and sentence as to Count One and REMAND for proceedings consistent with this opinion.
* The Hon orable R ichard M ills, United States District Judge for the Central District of Illinois, sitting by designation.
1 No. 02-5163 United States v. Rose 3 4 United States v. Rose No. 02-5163
I. JURISDICTION B. Procedural Background The district court had jurisdiction pursuant to 18 U.S.C. On April 11, 2001, Rose, Vasquez, and Estrada were § 3231 because Rose was charged with offenses against the charged in a three-count Indictment. On May 22, 2001, a laws of the United States. This court has jurisdiction over the Superseding Indictment named an additional three co- appeal under 28 U.S.C. § 1291 because Rose is appealing a conspirators. In Count One of the Superseding Indictment, conviction imposed by the district court. Rose and all five co-conspirators were charged with conspiring to distribute five hundred grams or more of a II. BACKGROUND mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846, A. Factual Background 841(a)(1), and 841(b)(1)(A). In Count Two, Rose, Vasquez, and Estrada were charged with distributing fifty grams or The facts of this case are not in dispute. “In March 2001, more of a mixture or substance containing a detectable agents with the Tennessee Bureau of Investigation (“TBI”) amount of methamphetamine, in violation of 21 U.S.C. received information from a confidential informant (“CI”) § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. In Count Three, that” Rose could deliver methamphetamine. Presentence Rose, Vasquez, and Estrada were charged with knowingly Report (“PSR”) at 5. The CI arranged to purchase one pound and intentionally carrying a firearm during and in relation to of methamphetamine from Rose and to have it delivered to a the drug trafficking offenses set out in Counts One and Two, residence in Meigs County, Tennessee. On March 19, 2001, in violation of 18 U.S.C. §§ 2 and 924(c). the CI and an undercover TBI agent met Rose at that residence; additional TBI agents monitored the transaction. On September 6, 2001, Rose pleaded guilty to Counts One and Three pursuant to a written plea agreement. A sentencing Ralph Vasquez (“Vasquez”), a co-defendant, accompanied hearing was held on January 4, 2002, and a judgment was Rose to the residence. Previously, in Dalton, Georgia, Eric entered that same day, dismissing Count Two on the Estrada (“Estrada”) had “fronted” the methamphetamine that government’s motion. There are discrepancies between the Rose was to deliver to the CI. Estrada had sent his associate, descriptions of the charges in Counts One and Three as stated Vasquez, along with Rose on the March 19, 2001 transaction in the Superseding Indictment and as stated in the plea to ensure that Estrada received payment. agreement. At the residence in Meigs County, Rose and Vasquez On January 10, 2002, Rose filed a timely notice of appeal negotiated to sell an additional two pounds of from the district court’s judgment. On July 19, 2002, Rose’s methamphetamine to the CI. Rose and Vasquez told the CI court-appointed counsel, Anthony Martinez, filed an Anders that they would deliver this additional methamphetamine for brief and a motion to withdraw. In his Anders brief, Rose’s $20,000 at a later date. Rose and Vasquez then delivered the counsel stated that after reviewing the entire record, he was of original one pound of methamphetamine in exchange for the opinion that there were no meritorious grounds for an $11,500. Immediately thereafter, TBI agents arrested Rose appeal. Nonetheless, in his Anders brief, Rose’s counsel and Vasquez. When the TBI agents searched the car that raised the issues of whether the district court erred by Rose and Vasquez used to travel to Meigs County, they found including the additional two pounds of methamphetamine a loaded Colt .45 in plain view. when determining Rose’s offense level and whether the No. 02-5163 United States v. Rose 5 6 United States v. Rose No. 02-5163
district court erred as to the extent of the downward departure additional two pounds of methamphetamine that Rose and in Rose’s sentence on the government’s 5K1.1 motion.1 Vasquez agreed to deliver should not have been considered in calculating Rose’s sentence. The government has not filed an On August 29, 2002, Rose filed a pro se response to his appellate brief in this case. counsel’s Anders brief. In his response, Rose raises the following three claims of error: (1) that the district court The extensive and rather complicated procedural history conducted Rose’s plea hearing in a manner that violated will be set out in more detail below as it pertains to each of Federal Rule of Criminal Procedure 11 (“Rule 11") and that the issues. the district court did not have jurisdiction to accept a plea to an offense that was not charged in the Superseding III. ANALYSIS Indictment;2 (2) that there was insufficient evidence to support Rose’s conviction for carrying a firearm during and A. District Court’s Compliance With Rule 11 for Count in relation to a drug trafficking offense;3 and (3) the One 1. Factual Background 1 The first issue, regarding the district court’s inclusion of the add itional two pound s of methamp hetam ine whe n determining Rose’s The description of the charge in Count One in the plea base offense level, is analyzed more fully in United States v. Vasquez, 352 agreement differs from that in the Superseding Indictment. In F.3d 1067 (6th C ir. 200 3), affirming the sentence of Ro se’s co-defendant, the Superseding Indictment, Count One states: Vasquez. The second issue , regard ing the district court’s grant of a three-level REGINALD CHARLES ROSE, III, and others unknown downward departure for the government’s 5K 1.1 motion, is meritless and to the Grand Jury, did combine, conspire, confederate, easily disposed of because we have held that a defendant cannot appeal the degree of a district court’s downward departure for substantial and agree to knowingly, intentionally, and without cooperation, so long as the district court remained within the sentencing authority violate Title 21, United States Code, Sections guidelines. Un ited States v. Gregory, 932 F.2d 116 7, 11 69 (6th Cir 841(a)(1) and 841(b)(1)(A), that is, to distribute 500 1991). grams or more of a mixture or substance containing a 2 detectable amount of methamphetamine, a Schedule II It is not clear whether Rose raises these as two distinct claims of controlled substance, in violation of Title 21, United error, but we will treat them as such. On page four of his brief, Rose States Code, Section 846. states, “The Court never had jurisdiction to sentence as the charges presented to the Court were different than the charges brought in the indictm ent.” App ellant’s Br. at 4. Then, on page five of his brief, Rose R. at 35 (Superseding Indictment) (emphases added). In the states, “In order to be able to make an informed decision on the plea plea agreement, paragraph one states: agree ment, Rose would have had to kno w that he was no t plead ing guilty to the charges in the indictment, rendering the plea moot.” Id. The defendant [Rose] agrees to plead guilty to the 3 following counts of a Superseding Indictment filed Again, it is not clear whether Rose is complaining about the against him in the above-styled case: sufficiency of the evidenc e to sup port his conviction, or about the sufficiency of the Superseding Indictment. Appellant’s Br. at 4. On page four of his brief, Rose claim s the “cha rge can not stand on its merit,” which seems to allege that the evide nce was insufficient to supp ort his charge was no t “proper at indictment,” which seems to allege that the conviction. Appellant’s Br. at 4. On that same page, Ro se also claims the Supersed ing Indictment was insufficient. Id. No. 02-5163 United States v. Rose 7 8 United States v. Rose No. 02-5163
Count One charging him with a violation of Title 21, MR. LAYMON [government counsel]: Judge, as to both United States Code, Section 846, i.e., attempt to Mr. Rose and Mr. Vasquez, the first defendant and the violate Title 21, United States Code, Section third defendant, they’re pleading guilty pursuant to their 841(a)(1) and 841(b)(1)(B), that is, to knowingly, plea agreements, which stipulate a plea to what would be intentionally and without authority distribute fifty a lesser included offense, technically, I suppose, but it (50) grams or more of a mixture or substance would be (b)(1)(B) as opposed to (b)(1)(A). . . . [Rose c o n t a i n i n g a d e t e ct a b l e a m o u n t o f and Vasquez] would be pleading guilty to 50 grams or methamphetamine, a Schedule II controlled more, which is the (b)(1)(B) provision. substance. THE COURT: So, Mr. Brooks, your client is pleading R. at 81 (Plea Agreement) (emphases added). The description guilty to the charge insofar as it alleges — is it 50 grams of the charge in Count One in the plea agreement differs from or less, and not guilty as the charge alleges over 50 that in the Superseding Indictment in three respects: (1) it grams? Is that correct? changes the charge from “conspiring to distribute” to “attempting to distribute”; (2) it changes the statutory MR. BROOKS: Your Honor, it’s 50 grams or more but provision from 21 U.S.C. § 841(b)(1)(A) to 21 U.S.C. not over 500 grams. § 841(b)(1)(B); and (3) to correspond with the changed statutory provision, it changes the drug quantity contained in THE COURT: Okay. Fifty grams or more — the description of the charge from “five hundred grams or more” to “fifty grams or more.” MR. BROOKS: That’s correct.
At the plea hearing, the district court read the charge in THE COURT: — but not over 500 grams? Count One as it is stated in the Superseding Indictment. In response, Rose pleaded guilty. After Rose pleaded guilty, MR. BROOKS: That’s correct. Vasquez’s attorney, Mr. Brooks, pointed out that Vasquez’s THE COURT: He’s pleading not guilty to any amount plea agreement changed the charge from a violation of of 500 or more grams? 21 U.S.C. § 841(b)(1)(A), conspiring to distribute five hundred grams or more of methamphetamine mixture, to a MR. BROOKS: That’s correct, Your Honor. violation of 21 U.S.C. § 841(b)(1)(B), the penalty for fifty grams or more. The Assistant U.S. Attorney, Mr. Laymon, MR. MARTINEZ: Judge, on behalf of Mr. Rose, also, also acknowledged the change. Rose joined in Vasquez’s Your Honor. objection regarding the change. The discussion went as follows: THE COURT: Okay. MR. BROOKS [counsel for Vasquez]: Your Honor, our Plea Hr’g Tr. at 14-15. Thus, at the plea hearing, the parties plea agreement says 50 grams, rather than 500 grams, and the district court discussed the discrepancies between the which was the original indictment. Superseding Indictment and the plea agreement regarding the statutory provisions and the drug quantities. They did not, THE COURT: Mr. Laymon? No. 02-5163 United States v. Rose 9 10 United States v. Rose No. 02-5163
however, discuss the substitution of the attempt language for in Rule 11(h)). An error is not harmless if the defendant’s the conspiracy language. substantial rights were affected. Id. In the present case, Rose did not raise below the issue of the district court’s compliance Also at the plea hearing, when stating the elements that the with Rule 11. When a defendant did not contemporaneously government would be required to prove in order to convict object to the district court’s alleged failure to comply with the Rose and Vasquez of the charges in Count One, the district requirements of Rule 11, we review for plain error. United court listed the elements for conspiracy, rather than attempt. States v. Vonn, 535 U.S. 55, 59 (2002). “To establish plain The district court stated: error, a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or In Count 1 you [Rose and Vasquez] are charged with a clear; (3) that the error affected defendant’s substantial rights; conspiracy to distribute a mixture or substance which and (4) that this adverse impact seriously affected the contained a detectable amount of methamphetamine. For fairness, integrity or public reputation of the judicial you to be found guilty of this offense, the government proceedings.” United States v. Koeberlein, 161 F.3d 946, 949 would have to prove beyond a reasonable doubt the (6th Cir. 1998).4 following elements: (1) you conspired or agreed with at least one other person to commit the crime of distributing a mixture or substance which contained a detectable 4 amount of methamphetamine, and (2) you knowingly and W e are aware that the Sup reme Court rece ntly granted certiorari in United States v. Benitez, 310 F.3d 122 1 (9th Cir. 20 02), cert. granted, 72 voluntarily joined the conspiracy. U.S.L.W . 3121 (U.S. Dec. 8, 2003) (No. 03-167), to decide whether a defendant, who pleaded guilty during a deficient Rule 11 proceed ing and Plea Hr’g Tr. at 16. did not contemporaneously object to the deficiency, must prove that he would not have pleaded guilty absen t the deficiency in o rder to ob tain 2. Analysis reversal. W e are also aware that many of our sister circuits impose such a requirement on defendants seeking to obtain reversal under the plain- In his pro se brief, Rose appears to contend that the district error standard, and so me even impose it on defendants seeking to ob tain reversal under the harmless-error standard. See, e.g., United States v. court conducted Rose’s plea hearing in a manner that violated Dixon, 308 F.3d 229 (3d Cir. 2002) (plain-error standard); United States Rule 11, and thus prevented him from entering a valid guilty v. Martinez, 289 F.3d 1023 (7th Cir. 2002) (plain-error standard); United plea to Count One. The district court failed adequately to States v. Martinez, 277 F.3d 517 (4th C ir.), cert. denied, 537 U.S. 899 inform Rose of the charges against him in Count One, failed (2002) (plain-error standa rd); United States v. Prado, 204 F.3d 843 (8th to determine whether Rose understood the charges against Cir.), cert. denied, 531 U.S. 102 4 (2000 ) (harmless-error standard); United States v. We stcott, 159 F.3d 107 (2d Cir. 19 98), cert. denied, 525 him in Count One, and failed to ensure there was a sufficient U.S. 1084 (1999) (harmless-error standard); United States v. Noriega- factual basis for the charge. Rose, however, did not Millan, 110 F.3d 162 (1st Cir. 1997) (harmless-error standard); United contemporaneously object to the manner in which the district States v. Lyons, 53 F.3d 1321 (D.C. Cir. 1995) (harmless-error standard); court conducted his plea hearing. United States v. Johnson, 1 F.3d 296 (5th C ir. 1993) (harmless-error standard); United States v. Vaughn, 7 F.3d 1533 (10th Cir. 1993), cert. When a defendant has raised the objection below, we denied, 511 U.S. 103 6 (1994 ) (harmless-error standard). This circuit has not yet imposed on defendants, who seek to obtain review the district court’s compliance with Rule 11 for reversal of their convictions pursuant to guilty pleas based upon harmless error. United States v. Syal, 963 F.2d 900, 904 (6th deficiencies at their Rule 11 proceed ings, a requirement that they prove Cir. 1992) (discussing the harmless error provision contained that they would not have pleaded guilty absent the deficiencies, and we decline to do so in this case. Instead, we conclude that the error that No. 02-5163 United States v. Rose 11 12 United States v. Rose No. 02-5163
Rule 11 specifies the procedure that district courts must 11(f) requires: “Notwithstanding the acceptance of a plea of follow when accepting a defendant’s guilty plea. Rule 11(c) guilty, the court should not enter a judgment upon such plea requires, inter alia, “Before accepting a plea of guilty or nolo without making such inquiry as shall satisfy it that there is a contendere, the court must address the defendant personally factual basis for the plea.” Fed. R. Crim. P. 11(f).6 Although in open court and inform the defendant of, and determine that the procedure specified in Rule 11 is not constitutionally the defendant understands . . . the nature of the charge to required, the purpose of Rule 11 is “to assist the district judge which the plea is offered.” Fed. R. Crim. P. 11(c)(1).5 Rule in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. . . . [and] to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” McCarthy v. occurred during Rose’s Rule 11 proceed ing was so egregious that it prevented Rose from understanding what crime he was pleading guilty to, United States, 394 U.S. 459, 465 (1969); see also Syal, 963 and thus constitutes plain erro r. We will not impose on Rose the burden F.2d at 904. of demonstrating that he would not have pleaded guilty absent the deficiency. We have decided several cases in which the defendant In so holding, we point out that this case is fundamentally different claimed that the district court violated Rule 11 because the from Benitez, in that the error that occurred in this case impugns the ascertainment of Ro se’s guilt, whereas the error that occurred in Benitez district court did not list the elements that the government mere ly affected whether the defendant understood the terms of his plea must prove beyond a reasonable doubt in order to convict the bargain. W e conclude that the error that occurred in this case falls defendant of the charges in the indictment. Compare Syal, squarely within the requirements imposed by Fed. R. Crim. P. 52(b) 963 F.2d at 902-905 (holding that the district court’s failure because it affected Rose’s substantial rights. Although a defendant in even to “rehearse the content of the indictment” or to list the order to ob tain reversal must typically sho w that the error was prejud icial, elements of the crime violated Rule 11); United States v. i.e., that it “affected the outco me o f the district court proceedings,” in United States v. Olano, 507 U.S. 725, 734 -35 (1993), the Supreme C ourt Goldberg, 862 F.2d 101, 108-09 (6th Cir. 1988) (holding that stated: “There may be a special category of forfeited errors that can be the district court’s failure to list the active concealment corrected regardless of their effect on the outcome.” In Olano, the element of the crime of misprision of a felony violated Rule Supreme Court further stated that a “Court of Appeals should corre ct a 11 because that crime is uncommon); and United States v. plain forfeited error affecting substantial rights if the error ‘seriously Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) (holding that affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. at 736. Such an error occurred in this case. the district court’s “reading of the indictment and defendant’s admission of guilt are not sufficient compliance” with 5 In 2003, Rule 11 was amended and renumbered. The 2003 version Rule 11 where the crime charged is complex and not easily requires district courts to conduct an even more thorough inquiry into a understood), with United States v. Edgecomb, 910 F.2d 1309, defendant’s understanding of the charges against her before accepting a plea of guilty or nolo contendere. In this opinion, we cite to the 2002 version of Rule 11, which was in effect when Rose pleaded guilty. On remand, the district court should ensure that it complies with the 2003 defendant understands, the following: version of Rule 11. ... W hat used to be Rule 1 1(c)(1) is no w part of Rule 11(b)(1 ). Rule (G) the nature of each charge to which the defendant is 11(b )(1) now provide s: pleading. Before the court accepts a plea of guilty or nolo contendere, the 6 defendant may be placed under oath, and the co urt must address W hat used to be R ule 11 (f) is now Rule 1 1(b)(3). N ew Rule the defendant perso nally in op en co urt. During this address, the 11(b )(3) requires: “Before entering judgment on a guilty plea, the court court must inform the defendant of, and determine that the must determine that there is a factual basis fo r the plea.” No. 02-5163 United States v. Rose 13 14 United States v. Rose No. 02-5163
1313 (6th Cir. 1990) (holding that district court adequately involves consideration of the nature of the charge and the explained the conspiracy charge at issue in that case by dialogue that took place between the defendant and the Court reading the indictment accompanied by the government’s during the Rule 11 proceeding.” Van Buren, 804 F.2d at 891. recitation of the factual basis, because the conspiracy was In Edgecomb, this court considered the crime of conspiracy to easily understood and the district court read the charges in the possess cocaine with intent to distribute and held that the indictment); and United States v. Ferguson, No. 96-6029, crime as alleged in that case, is easily understood, and thus 1997 WL 764471, at *3-*4 (6th Cir. Dec. 3, 1997) (holding the district court there complied with Rule 11 by merely that the district court’s failure to read the charges in the reading the indictment where the government described the indictment or list the elements of conspiracy to distribute facts constituting that conspiracy. Edgecomb, 910 F.2d at drugs did not violate Rule 11 because that crime is easily 1313. In this case, however, an examination of the record and understood, the government gave a detailed description of the the dialogue that took place between the defendant and the defendant’s conduct, the district court questioned the district court reveals that the defendant did not understand the defendant regarding the conduct that constituted the offense, nature of the charge to which he was pleading guilty. and the defendant stated that he had discussed the charges with his attorney and understood the charges). Thus, we have Here, the district court read the description of the charge in concluded that when a defendant claims that the district court Count One from the Superseding Indictment, while Count violated Rule 11 by failing during the plea colloquy to list the One was stated differently in the plea agreement. Rose elements of the crime charged, the sufficiency of the plea objected to the district court’s reading of Count One of the colloquy depends upon the complexity of the crime charged. Superseding Indictment, insofar as it charged Rose with “Where the crime is easily understood, several courts have conspiring to distribute five hundred grams of held that a reading of the indictment, or even a summary of methamphetamine, in violation of § 841(b)(1)(A), instead of the charges in the indictment and an admission by the fifty grams of methamphetamine, in violation of defendant, is sufficient to establish a factual basis.” Van § 841(b)(1)(B). Rose clarified that he was only pleading Buren, 804 F.2d at 892. Additionally, we have held that a guilty to fifty grams of methamphetamine, in violation of simple conspiracy to distribute drugs is easily understood, and § 841(b)(1)(B), and thus obviated any Rule 11 problems that thus a district court may comply with this part of Rule 11 by might have arisen from the discrepancies between the merely reading the conspiracy charge from the indictment and Superseding Indictment and the plea agreement regarding the asking the defendant whether he understands it. Edgecomb, statutory provisions and the drug quantities. Rose did not 910 F.2d at 1313. object, however, to the district court’s reading of Count One of the Superseding Indictment, insofar as it charged Rose with Although Rose was convicted of a simple conspiracy to conspiring to distribute methamphetamine, instead of distribute methamphetamine, a crime this court has held is attempting to distribute methamphetamine. Therefore, the easily understood, we hold that the district court nonetheless district court failed to determine whether Rose understood violated Rule 11(c)(1), and thus prevented Rose from entering that he was pleading guilty to conspiracy. The description of a valid guilty plea. Rule 11(c)(1) requires the district court to the charges in the plea agreement indicates that Rose thought inform the defendant of the charges against him and to he was pleading guilty to attempt. The district court, determine whether the defendant understands the nature of the however, accepted Rose’s guilty plea and entered a judgment charge to which he is pleading guilty. Fed. R. Crim. P. of conviction on the crime of conspiring to distribute 11(c)(1). “[A] determination of defendant’s understanding methamphetamine. Because Rose might not have understood No. 02-5163 United States v. Rose 15 16 United States v. Rose No. 02-5163
that he was pleading guilty to conspiring to distribute crime to which the plea is offered “cannot be said to be methamphetamine, rather than attempting to distribute harmless.” 963 F.2d at 905. In reaching this conclusion, in methamphetamine, he did not enter a valid guilty plea to Syal, we noted that the defendant’s substantial rights were Count One. affected by the district court’s failure to list the elements. Id. at 904. For the reasons discussed above, the errors committed Rule 11(f) requires the district court to determine that there by the district court in this case affected Rose’s substantial is a sufficient factual basis for the charge to which the rights. To meet the higher plain error standard, in addition to defendant is pleading guilty. Fed. R. Crim. P. 11(f). We have finding that the errors affected Rose’s substantial rights, we held, “[W]hile the exact method of producing a factual basis must also find that the error “seriously affected the fairness, on the record is subject to a flexible standard of review, the integrity or public reputation of the judicial proceedings.” need to have some factual basis will continue to be a rule Koeberlein, 161 F.3d at 949. Because the district court’s subject to no exceptions.” Goldberg, 862 F.2d at 106 violations of Rule 11 prevented Rose from understanding the (quoting United States v. Fountain, 777 F.2d 351, 357 (7th charge to which he was pleading guilty, the violations Cir. 1985)). We have also recognized that the district court seriously affected the fairness of the proceedings and rose to may determine the existence of a factual basis from various the level of plain error. sources, including a statement by the prosecutor or a statement by the defendant. Id. at 105. The description of the B. District Court’s Jurisdiction to Accept Rose’s Guilty charges in the plea agreement indicates that Rose thought he Plea to Attempt was pleading guilty to the crime of attempting to distribute methamphetamine mixture. When ascertaining whether there In his pro se brief, Rose also appears to argue that the was a sufficient factual basis, the district court merely asked district court lacked jurisdiction to accept Rose’s guilty plea Rose whether the written factual basis in the plea agreement and to sentence Rose on Count One because Rose pleaded was true as far as Rose knew, and Rose agreed. Rose’s guilty to attempting to distribute methamphetamine, which confusion regarding the charge to which he was pleading was not charged in the Superseding Indictment. The colloquy guilty likely spilled over into his concession that the factual at Rose’s plea hearing and the district court’s judgment of basis was true, and thus his concession does not constitute a conviction indicate that Rose actually pleaded guilty to sufficient factual basis. Because the district court did not conspiring to distribute methamphetamine, which was determine that there was a sufficient factual basis for charged in the Superseding Indictment. Therefore, the district conspiring to distribute methamphetamine mixture, Rose did court did not, as Rose contends, actually accept a guilty plea not enter a valid guilty plea to Count One. to a crime not charged in the Superseding Indictment. This conclusion and our decision to vacate Rose’s plea due to the All of the Sixth Circuit cases cited above, discussing the Rule 11 violations makes further analysis of this assignment procedure the district court must follow when accepting a of error unnecessary.7 defendant’s guilty plea, were decided under the harmless error standard. In this case, however, Rose did not raise the issue of compliance with Rule 11 in the district court. Therefore, we must review the district court’s actions for plain error. 7 Vonn, 535 U.S. at 59. In Syal, we held that, in a complex W e do, however, point out that “defects in an indictment do not deprive a court of its power to adjudicate a case.” United States v. Cotton, case, the district court’s failure to list the elements of the 535 U .S. 625, 630 (200 2). No. 02-5163 United States v. Rose 17 18 United States v. Rose No. 02-5163
C. Sufficiency of the Evidence for Count Three 18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, a defendant can be charged and convicted of violating § 924(c) In his pro se brief, Rose argues that there was insufficient under three different theories, including (1) using a firearm evidence to support his conviction on Count Three of the during and in relation to a drug trafficking crime, (2) carrying Superseding Indictment, which charged Rose with carrying a a firearm during and in relation to a drug trafficking crime, or firearm during and in relation to a drug trafficking crime, in (3) possessing a firearm in furtherance of a drug trafficking violation of 18 U.S.C. § 924(c).8 By pleading guilty, Rose crime. Rose was charged under the “carry” prong of § 924(c). admitted the truth of all of the facts set forth in the Superseding Indictment. United States v. Parker, 292 F.2d 2, Rose argues that to be charged under the “carry” prong, the 2 (6th Cir. 1961); see also United States v. Kyle, No. 01-6014, defendant must have actively employed the firearm. In his 2001 WL 1580232, at *4 (6th Cir. Dec. 6, 2001). brief, Rose states: Furthermore, the district court properly determined that the facts stated in the Superseding Indictment and the factual A weapon in a car does not satisfy the carry standard set basis are sufficient to support a conviction for carrying a forth in 18 USC § 924(c)(1)(a). [sic]. Bailey v US, 516 firearm during and in relation to a drug trafficking offense; US 137. therefore, we reject this assignment of error. In Bousley v US, 523 US 614, the Court held that, active Section 924(c) provides: employment of a firearm is a requirement of charging a defendant with 924(c). Active employment includes uses any person who, during and in relation to any crime of such as brandishing, displaying, bartering, striking with, violence or drug trafficking crime . . . for which the firing, or attempting to fire the weapon, but does not person may be prosecuted in a court of the United States, include mere possession of a firearm; thus, a defendant uses or carries a firearm, or who, in furtherance of any cannot be charged under § 924(c)(1) merely for such crime, possesses a firearm, shall, in addition to the (1) storage of a weapon near drugs or drug proceeds, or punishment provided for such crime of violence or drug (2) placement of a firearm to provide a sense of security trafficking crime — or to embolden. (i) be sentenced to a term of imprisonment of not less Appellant’s Br. at 4. Although Rose is correct that Bailey v. than 5 years. United States, 516 U.S. 137, 138-39 (1995), and Bousley v. United States, 523 U.S. 614, 616 (1998), discuss the active employment requirement, in those cases, the defendants were 8 At one p oint, Rose seems to allege that the Superseding Indictment convicted under the “use” prong of § 924(c). In the present was insufficient on this count. Appellant’s Br. at 4 (stating that the charge case, Rose was charged under the “carry” prong of § 924(c). was not “proper at indictment”). This court has held, “In order for an In Bailey, the Supreme Court held that to obtain a conviction indictment to be sufficient, it must con tain the elements of the offense under the “use” prong, the government must show that the charged and fairly inform a defendant of the charges against which he must defend.” Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989) defendant actively employed the firearm. Bailey, 516 U.S. at (citing Ham ling v. United States, 418 U.S. 87, 117 (197 4)). T his claim has no merit because Count Three clearly charged Rose with carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 92 4(c). No. 02-5163 United States v. Rose 19 20 United States v. Rose No. 02-5163
148-49.9 The Court further held that showing that the (Factual Basis). Rose and Vasquez used this automobile to defendant merely possessed the firearm was not sufficient to transport the methamphetamine from Dalton, Georgia, to obtain a conviction under the “use” prong; therefore, “A Meigs County, Tennessee. Under Muscarello and Hilliard, defendant cannot be charged under [the “use” prong of] a defendant may be convicted under the “carry” prong if he 924(c)(1) merely for storing a weapon near drugs or drug possesses and conveys a firearm. The district court’s finding proceeds.” Bailey, 516 U.S. at 149. that the firearm was located in the passenger compartment of the car Rose used to travel to Meigs County and to deliver the The Court in Bailey additionally noted that the government methamphetamine was sufficient evidence to support Rose’s is not required to show that a defendant actively employed the conviction under the “carry” prong. Therefore, we reject firearm to obtain a conviction under the “carry” prong. Id. at Rose’s claim that there was insufficient evidence to support 150 (stating, “The ‘carry’ prong of § 924(c)(1) . . . brings his conviction for carrying a firearm during and in relation to some offenders who would not satisfy the ‘use’ prong within a drug trafficking offense, in violation of 18 U.S.C. § 924(c). the reach of the statute”). Later, in Muscarello v. United Moreover, the fact that we are vacating Rose’s conviction on States, 524 U.S. 125, 128-39 (1998), the Court discussed the Count One does not require us to vacate Rose’s conviction on elements the government must prove to obtain a conviction Count Three because § 924(c) only requires that the district under the “carry” prong of § 924(c). To obtain a conviction court be convinced that the defendant carried a weapon in under the “carry” prong, the government must show the connection with a drug trafficking offense for which he may defendant transported the firearm, with some degree of be prosecuted. United States v. Ospina, 18 F.3d 1332, 1335- agency or control, during and in relation to a drug trafficking 36 (6th Cir.), cert. denied, 512 U.S. 1226 (1994). crime. See Muscarello, 524 U.S. at 134, 139; Hilliard v. United States, 157 F.3d 444, 449 (6th Cir. 1998). In D. District Court’s Compliance with Rule 11 for Count Muscarello, the Court held that the government may obtain a Three conviction under the “carry” prong by showing the defendant transported the firearm in his car during and in relation to a 1. Factual Background drug crime. 524 U.S. at 139. The Court stated that the “carry” prong “applies to a person who knowingly possesses The description of the charge in Count Three in the plea and conveys firearms in a vehicle, including in the locked agreement also differs from that stated in the Superseding glove compartment or trunk of a car, which the person Indictment. In the Superseding Indictment, Count Three accompanies.” Id. at 126-27. states:
In the present case, the factual basis accompanying Rose’s RALPH VASQUEZ, REGINALD CHARLES ROSE, plea agreement states, “After Rose and Vasquez were arrested III, and ERIC ESTRADA, aided and abetted by each in Meigs County, police found a loaded .45 caliber handgun other, did knowingly and intentionally carry a firearm, in the passenger compartment of [their] automobile.” R. at 86 that is, a loaded .45 caliber Colt handgun, during and in relation to the drug trafficking crimes set out in Counts One and Two above, in violation of Title 18, United States Code, Sections 2 and 924(c). 9 Bousley discusses “the p ermissibility of po st-Bailey collateral attacks on § 924(c)(1) convictions obtained p ursuan t to guilty pleas.” Bousley, 523 U.S. at 618. No. 02-5163 United States v. Rose 21 22 United States v. Rose No. 02-5163
R. at 34 (Superseding Indictment) (emphasis added). In the 2. Analysis plea agreement, paragraph one states: Unlike the discrepancy between the two versions of Count The defendant agrees to plead guilty to the following One, the difference between the language of Count Three in counts of a Superseding Indictment filed against him in the Superseding Indictment and in the plea agreement did not the above-styled case: prevent Rose from entering a valid guilty plea to Count Three. In the Superseding Indictment, Rose was charged both . . . Count Three charging him with a violation of as a principal and as an aider and abettor; therefore, the Title 18, United States Code, Section 924(c), that is, district court did not err in reading the elements for carrying knowingly and intentionally carry [sic] a firearm, during a firearm as a principal and accepting Rose’s plea to carrying and in relation to a drug trafficking crime. a firearm as a principal. R. at 81 (Plea Agreement). Thus, the description in the plea As discussed above, when a defendant did not agreement of the charge in Count Three omits the “aided and contemporaneously object to the district court’s alleged abetted by each other” language that is included in the failure to comply with the requirements of Rule 11, we review Superseding Indictment. for plain error. Vonn, 535 U.S. at 59. Rule 11 specifies the procedure to be followed by a district court in accepting a At Rose’s plea hearing, the district court read the charge in defendant’s guilty plea. Rule 11(c) requires, among other Count Three from the Superseding Indictment, including the things, that “[b]efore accepting a plea of guilty or nolo “aided and abetted by each other” language. In response, contendere, the court must address the defendant personally Rose pleaded guilty. No objections were made regarding the in open court and inform the defendant of, and determine that district court’s reading of the charge in Count Three. Also at the defendant understands . . . the nature of the charge to the plea hearing, when stating the elements that the which the plea is offered.” Fed. R. Crim. P. 11(c). government would be required to prove in order to convict Rose and Vasquez on the charge in Count Three, the district Count Three of the Superseding Indictment charges Rose court omitted the “aided and abetted by” language. The with carrying a firearm during and in relation to a drug district court stated: trafficking crime, aided and abetted by the co-conspirators. The plea agreement, however, describes Count Three as only In Count 3 you are charged, Mr. Vasquez and Mr. charging Rose with carrying a firearm in relation to a drug Rose, with carrying a firearm during and in relation to trafficking crime. Thus, the “aided and abetted” language the commission of a drug-trafficking offense. For you to included in the Superseding Indictment was omitted from the be convicted of this crime, the government would have plea agreement. During the plea colloquy, the district court to prove beyond a reasonable doubt the following two read Count Three, as stated in the Superseding Indictment, elements: (1) you committed the drug-trafficking offense but then listed the elements for carrying a firearm without alleged in Count 1 of the superseding indictment, and listing the aiding and abetting requirement. (2) during and in relation to the commission of that drug- trafficking offense, you knowingly carried a firearm. The omission of the “aided and abetted by” language from the plea agreement and from the district court’s reading of the Plea Hr’g Tr. at 16. elements of the offense during the plea colloquy did not No. 02-5163 United States v. Rose 23 24 United States v. Rose No. 02-5163
prevent Rose from entering a valid guilty plea to Count defendant’s conviction for aiding and abetting another in Three. In Count Three of the Superseding Indictment, Rose receiving illegal firearms, even though the indictment did not was charged as both a principal and an aider and abettor;10 include language referring to aiding and abetting liability.11 therefore, the district court did not err in reading the elements Id. at *13. The reasoning of Taniguchi applies in this case. for carrying a firearm as a principal or accepting Rose’s plea The omission of the “aided and abetted language” from the to carrying a firearm as a principal. Count Three of the plea agreement and from the district court’s reading of the Superseding Indictment states that the defendants “aided and elements of the offense during the plea colloquy does not abetted by each other, did knowingly and intentionally carry constitute a violation of Rule 11. a firearm.” This language charged Rose with carrying the firearm himself, as well as aiding and abetting the other E. Drug Quantity Used to Calculate Rose’s Sentence defendants in the offense of carrying a firearm. To charge a defendant with aiding and abetting, but not committing the 1. Factual Background crime himself, an indictment would state that the defendant aided and abetted another in the commission of the crime. On January 4, 2002, Rose was sentenced to 138 months’ See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th imprisonment (seventy-eight months on Count One and sixty Cir.), cert. denied, 493 U.S. 834 (1989) (considering the months on Count Three) and four years of supervised release. defendant charged “with aiding and abetting [another] in At the sentencing hearing, Rose joined Vasquez’s objection knowingly receiving and possessing illegal machine guns in to the amount of methamphetamine used to determine each of violation of 18 U.S.C. § 2 and 26 U.S.C. § 5861(c)”). their base offense levels. During the objection, Vasquez Because Count Three of the Superseding Indictment charged argued that under United States Sentencing Guidelines Rose with carrying a firearm as a principal and the written (“U.S.S.G.”) § 2D1.1, Application Note 12 (“Note 12”), the plea agreement described Count Three as charging Rose with additional two pounds of methamphetamine that Rose and carrying a firearm as a principal, the district properly advised Vasquez agreed to deliver should not be considered in Rose of the nature of the charges against him in compliance determining his base offense level because Vasquez and Rose with Rule 11(c)(1). were not reasonably capable of delivering the additional two pounds due to their imminent arrest. Additionally, in a recent unpublished opinion, we held that aiding and abetting is “merely a theory of liability, and not an In response to the objection, the government argued that offense distinct in and of itself.” United States v. Taniguchi, under Note 12, these additional two pounds of Nos. 00-4495, 00-4496, 2002 WL 31371978, at *13 (6th Cir. methamphetamine should be considered in determining Oct. 11, 2002) (citing United States v. Schuh, 289 F.3d 968, Rose’s and Vasquez’s base offense levels because they agreed 976 (7th Cir. 2002)). In Taniguchi, we upheld the to deliver, intended to deliver, and were reasonably capable of delivering the additional two pounds. The government supported its argument by showing that during the same 10 Regard less of whether this additional language makes the Superseding Indictment duplicitous or is mere surplusage, Rose may not 11 argue that the Superseding Indictment is defective on these bases because In Taniguchi, we held that the indictment was sufficient because by pleading guilty, Rose waived his objection to all non-jurisdictional it cited 18 U.S.C. § 2, which addresses aiding and ab etting liability. defec ts in the indictment. United States v. Moloney, 287 F.3d 236, 239 United States v. Taniguchi, Nos. 00-4495, 00-4496, 2002 WL 31371978, (2d Cir. 2002). at *13 (6th Cir. Oct. 11, 2002). No. 02-5163 United States v. Rose 25 26 United States v. Rose No. 02-5163
month, Estrada, Rose’s and Vasquez’s supplier, engaged in one pound of methamphetamine that Rose actually delivered transactions for one-half of a pound, one pound, and two and the additional two pounds of methamphetamine that Rose pounds of methamphetamine.12 agreed to deliver. Note 12 provides: The district court overruled the objection and accepted the In an offense involving an agreement to sell a controlled calculations contained in the Presentence Report (“PSR”). substance, the agreed-upon quantity of the controlled The PSR used the additional two pounds of substance shall be used to determine the offense level methamphetamine that Rose and Vasquez agreed to deliver unless the sale is completed and the amount delivered and the one pound of methamphetamine that Rose and more accurately reflects the scale of the offense. . . . If, Vasquez actually delivered to determine Rose’s base offense however, the defendant establishes that he or she did not level. In accordance with the PSR, the district court set intend to provide, or was not reasonably capable of Rose’s base offense level for Count One at level thirty-two. providing, the agreed-upon quantity of the controlled Rose received a three-level downward adjustment for substance, the court shall exclude from the offense level acceptance of responsibility, making Rose’s total offense determination the amount of controlled substance that the level twenty-nine for Count One. The district court also defendant establishes that he or she did not intend to granted a downward departure of three levels in accordance provide or was not reasonably capable of providing. with the government’s § 5K1.1 motion, which reduced Rose’s offense level to twenty-six and resulted in a sentencing U.S.S.G. § 2D1.1, cmt. n.12 (2001). Rose failed to prove that guideline range of eighty-seven to ninety-seven months for he did not intend to provide or that he was not reasonably Count One. capable of providing the additional two pounds of methamphetamine; therefore, the district court properly used 2. Analysis a drug quantity of three pounds of methamphetamine mixture to determine Rose’s base offense level. Rose’s claim of error regarding the quantity of drug used to determine his base offense level is identical to his co- Rose raises one additional claim of error regarding the defendant’s claim, which this court analyzed fully in United calculation of his sentence. Rose contends that the PSR States v. Vasquez, 352 F.3d 1067 (6th Cir. 2003). Consistent incorrectly attributes 4.5 pounds of methamphetamine with Vasquez, we hold that the district court did not err in mixture to him in the determination of his base offense level. determining Rose’s base offense level based upon both the This claim is meritless because it is based upon a misreading of the PSR. Although the PSR refers to a drug quantity of 4.5 pounds of methamphetamine mixture, it attributes that 12 amount to Garnica, Estrada’s supplier. The 4.5 pounds was During March 2 001 , the Georgia Bureau of Investigation (“GBI”) not attributed to Rose. Only three pounds of investigated Estrada and Hector Garnica (“Garnica”). On March 12, methamphetamine mixture were attributed to Rose and his 2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia CI. Then, on March 1 6, 20 01, E strada and Braulio Garnica (“Braulio”) offense level was based upon a drug quantity of three pounds delivered an additional one pound of methamphetamine to the CI. On of methamphetamine mixture. March 18, Estrada arranged to deliver two pounds of methamphetamine to the same CI for $19,000 . On M arch 24, 2001 , Braulio delivered the two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica, and another charged co-co nspirator were also prese nt at that delivery. No. 02-5163 United States v. Rose 27
IV. CONCLUSION The district court committed plain error by accepting Rose’s guilty plea to Count One in a manner that violated Rule 11. The district court did not commit plain error in accepting Rose’s guilty plea to Count Three. Therefore, we VACATE Rose’s conviction and sentence as to Count One and REMAND for proceedings consistent with this opinion.