United States v. Santo

225 F.3d 92, 2000 U.S. App. LEXIS 23317, 2000 WL 1285391
CourtCourt of Appeals for the First Circuit
DecidedSeptember 15, 2000
Docket99-1899
StatusPublished
Cited by33 cases

This text of 225 F.3d 92 (United States v. Santo) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Santo, 225 F.3d 92, 2000 U.S. App. LEXIS 23317, 2000 WL 1285391 (1st Cir. 2000).

Opinions

CAMPBELL, Senior Circuit Judge.

Defendant-appellant Jose Santo pled guilty to drug conspiracy and other charges after being told — incorrectly, as it turned out — that he faced a statutory mandatory minimum sentence of only five years. Later, upon determining that San-to was responsible for more drugs than was initially contemplated, the district court sentenced him subject to the ten-year mandatory minimum applicable to the [94]*94greater drug quantity. Santo contends that the court’s understatement of the mandatory minimum penalty rendered his guilty plea involuntary, as the error both violated an express provision of Fed. R.Crim.P. 11 requiring advice as to the mandatory minimum penalty provided by law and also affected his substantial rights. See Fed.R.Crim.P. 11(c)(1) and (h). We agree, and allow Santo to withdraw his plea.

I.

On December 3, 1998, Santo and three co-defendants were charged with conspiracy to distribute heroin, 21 U.S.C. § 846, and the distribution of heroin, 21 U.S.C. § 841(a)(1). Santo was also charged with making false statements to a federal law enforcement officer, 18 U.S.C. § 1001, and making false statements in a passport application, 18 U.S.C. § 1542. Thereafter, Santo signed a plea agreement with the United States Attorney, in which he agreed to plead guilty to all the counts against him in the indictment and admitted that he was, in fact, guilty of each of these offenses.1

A. The plea agreement

The plea agreement included a statement of Santo’s mandatory minimum and maximum penalties. Count One, the conspiracy charge, was said to have

a maximum of 40 years and a mandatory minimum of 5 years, in federal prison without parole, to be followed by a term of supervised release of at least 4 years, a fine of up to $2,000,000, and a special assessment of $100,000.

The distribution counts were each said to provide, inter alia, for a maximum of twenty years imprisonment, and the false statement counts, inter alia, twenty years and five years respectively.

The plea agreement went on to announce that the parties “will take the following positions at sentencing under the United States Sentencing Guidelines”:

The parties agree to take the position in connection with the drug counts that Santo is accountable for at least 100 grams of heroin, that his Base Offense Level is 26 (10CM00 grams of heroin), and the five year minimum mandatory provision is applicable.

After reference to an agreed four-level upward adjustment for being an organizer or leader under U.S.S.G. § 3Bl.l(a), the parties agreed to take the position that the “safety valve” provision was inapplicable and that Santo’s adjusted offense level on the drug counts was 30. The parties agreed to an adjusted offense level of 10 on the two false statements counts, and to a possible three-level reduction for acceptance of responsibility under U.S.S.G. § 3B1.1, subject to certain conditions.

The plea agreement next contained a section entitled “Sentence Recommendation,” which read as follows: “The U.S. Attorney takes no position at this time concerning his sentence recommendation before the district court ...” In this section the parties agreed there was no basis for departure from the range established by the sentencing guidelines, except possibly for substantial assistance under U.S.S.G. § 5K1.1. The plea agreement further provided:

7. Court Not Bound By Agreement
The sentencing recommendations made by the parties and their respective calculations under the Sentencing Guidelines are not binding upon the U.S. Probation Office or the sentencing judge. Within the maximum sentence which Santo faces under the applicable law, the sentence to be imposed is within the sole discretion of the sentencing judge. San-to’s plea will be tendered pursuant to [95]*95Fed.R.Crim.P. 11(e)(1)(B). Santo may not withdraw his plea of guilty regardless of what sentence is imposed. Nor may Santo withdraw his plea because the U.S. probation office or the sentencing judge declines to follow the Sentencing Guidelines calculations or recommendations of the parties.

B. The Rule 11 hearing

On April 22, 1999, the district court conducted a change of plea hearing pursuant to Fed.R.Crim.P. 11 for Santo and one of his co-defendants. The parties filed the abovementioned written plea agreement with the court. The district court explained the nature of the charges and the rights that Santo was giving up by pleading guilty. Santo, who participated in the hearing via an interpreter, responded that he understood.

Consistent with the plea agreement, the court told Santo that he faced a mandatory minimum sentence of five years’ imprisonment and a maximum sentence of forty years:

Now let’s talk about what may happen here if you plead guilty. When Congress passes a law they pass a maximum possible sentence. And the maximum sentence here for the crime of distribution of heroin is twenty years in prison ... On the conspiracy charges, because the government in your case, Mr. Santo, says more drugs are attributable to you, the maximum sentence is potentially-— well, the maximum sentence is, the maximum, forty years in prison ... and I have to give you five years in prison, there’s a mandatory minimum sentence.

[Emphasis supplied.] The court made no mention of the possibility of a higher statutory mandatory minimum in the event that a greater quantity of drugs was attributed to Santo. Noting that Santo’s other charges could be sentenced consecutively, the court stated that it could add up all of his charges to a maximum of 185 years, or life imprisonment.

The court then turned to the sentencing guidelines:

Now, I’ll ask Mr. Pelgro [the Assistant United States Attorney] ... what he thinks the range is in each case. I turn to him not because he governs the range, I’ll figure out what the range is, but I’ll listen to him, I’ll listen to your attorneys, I’ll listen to you, I’ll listen to the probation officer, but you need to Jcnoiv that he thinks the range is because probably he’s the person who is looking for the most severe sentence.

[Emphasis supplied.] The government responded: “[W]e believe that Mr. Santo will come out, or we think he’ll come out at total offense level 27 ...” The government went on to state that the guideline sentencing range was 87 to 108 months (approximately seven to nine years), based on a criminal history category of III. The court then addressed Santo:

Now, Mr.

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Bluebook (online)
225 F.3d 92, 2000 U.S. App. LEXIS 23317, 2000 WL 1285391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santo-ca1-2000.