United States v. Thompson

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-1298



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                      ROY GRAY,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. A. David Mazzone, Senior U.S. District Judge]
                                         __________________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Cyr and Stahl, Circuit Judges.
                                           ______________



                                _____________________



               Jamie  Ann Sabino,  with whom  Klibaner and  Sabino, was  on
               _________________              ____________________

          brief for appellant.

               Roberta  T. Brown,  Assistant United  States  Attorney, with
               _________________

          whom  Donald  K. Stern,  United  States  Attorney  and Thomas  C.
                ________________                                 __________

          Frongillo, Assistant  United States  Attorney, were on  brief for
          _________

          appellee.


____________________



                                   August 16, 1995

                                 ____________________



TORRUELLA, Chief Judge.   Appellant Roy Gray challenges
                    TORRUELLA, Chief Judge
                    ______________________



          the district court's denial of his motion to withdraw his plea of



          guilty  to  charges  of  conspiracy  to  distribute  cocaine  and



          distribution of cocaine.   Because we  find that Gray  reasonably



          misunderstood the consequences of his  guilty plea, we remand  to



          the district court for further proceedings.



                                      BACKGROUND
                                      BACKGROUND



                    On January 20,  1993, a federal grand jury  returned an



          indictment  charging  Gray  with   one  count  of  conspiracy  to



          distribute cocaine base, in violation of 21 U.S.C.   846, and one



          count  of distribution  of cocaine  and aiding  and abetting,  in



          violation  of  21  U.S.C.      841(a)(1)  and  18  U.S.C.      2,



          respectively.   Gray was arrested on April  8, 1993, and pled not



          guilty  at his arraignment.   On October 18,  1993, the scheduled



          trial date, Gray changed his plea to guilty as to both charges.



                    At his change of  plea hearing, the court asked  Gray a



          series of questions pursuant to Fed. R. Crim. P. 11.  In response



          to  these questions,  Gray  stated that  he  had attended  school



          through  the  "eighth  or  ninth  grade;"  he  denied  taking any



          medicine, drugs, or alcohol on the day of the hearing, and stated



          that he had not been treated recently for any mental condition or



          mental  illness.   Gray  also  stated  that  he  had  no  trouble



          understanding the court's questions.



                    The  court  advised  Gray  of his  rights  in  specific



          detail, and informed him that he would waive these rights when he



          pled guilty.  Gray  stated that he understood his  rights as they


-2-



had been explained, that he understood that by pleading guilty he



          would lose those rights,  and that he gave up those rights freely



          and voluntarily.



                    The government  then  summarized the  evidence that  it



          would have  offered if  Gray's case  had gone  to trial,  and the



          court explained the nature of the charges.



                    The court asked Gray if he was entering his guilty plea



          freely and voluntarily, to which Gray answered yes.  With respect



          to Gray's possible sentence, the following colloquy took place:



                      COURT:  Do you believe it is in your best

                      interest  to enter  a plea  of  guilty at

                      this time? 



                      GRAY:  Yes, your Honor.  The reason why I

                      am pleading  guilty is like:   Take it to

                      trial and let the  jury and the tape with

                      me on the tape  talking, I don't stand no

                      chance.    I'd  rather  plead  out,  your

                      Honor.



                      COURT:  So you believe then, in the light

                      of   the  evidence   on  the   tapes  and

                      otherwise,  that  it   is  in  your  best

                      interest to plead guilty even if you have

                      some  feelings about what you were really

                      doing at the time, what was  really going

                      on at the time; is that right, sir?



                      GRAY:  Yes, sir.  And I rather plea.



                      COURT:   Well, with that understanding in

                      mind, do you still enter your plea freely

                      and voluntarily?



                      GRAY:  Yes, your Honor.



                      COURT:     Do  you  understand  what  the

                      maximum punishment can be?



                      GRAY:  Not exactly, your Honor.



                      COURT:   The  maximum punishment  is  ten

                      years to life.



                                         -3-



GRAY:  Yes, your Honor.



                      COURT:   And a fine  of up to  $4 million

                      dollars -- $8 million?



                      GRAY:  Yes, your Honor.



                      COURT:   And a special assessment  of $50

                      on each count, do you understand?



                      GRAY:  Yes, your Honor.



                      COURT:  Do you  understand the matter  of

                      your sentence is up to me?



                      GRAY:  Yes, your Honor.



                      COURT:    That  I  am not  bound  by  the

                      agreement  that you have reached with the

                      government?



                      GRAY:  Yes, your Honor.



                      COURT:   And,  also, do  you  understand,

                      sir,  that  you   might  be  subject   to

                      deportation?



                      GRAY:  Yes, your Honor.



                    The court subsequently found that:   1) Gray's plea was



          made freely and voluntarily; 2) Gray understood the nature of the



          charges  against him and the nature and consequences of his plea;



          3)  Gray was competent to enter his  plea; 4) Gray understood his



          rights,  and had freely and  voluntarily waived them;  and 5) the



          factual basis for the guilty plea was adequate, and that Gray had



          indicated  that it was  in his best  interest to enter  a plea of



          guilty.



                    Thirty-six days later, on November 23, 1993, Gray moved



          to withdraw  his plea, alleging that:   1) he did  not understand



          the plea  agreement which he  signed; 2) he  took no part  in the



          sale of  drugs as part of  the alleged conspiracy; and  3) he did



                                         -4-



not understand that the consequences of his plea, specifically as



          to his  sentence.  On February 3, 1994, the district court held a



          hearing  on  Gray's  motion.    At  the  hearing,  the  arguments



          proffered  by Gray's  counsel focused  almost exclusively  on the



          second  of these claims and Gray's assertions of innocence at his



          change of plea  hearing.   Essentially, Gray argued  that he  had



          only pled  guilty because  his co-defendants and  defense counsel



          had  suggested that  it  was  the best  course  of  action.   The



          district court denied Gray's motion  to withdraw his guilty plea.



          In so  doing, the court pointed  out that it had  found that Gray



          had understood what he  was doing and had pled guilty  because he



          felt it to be in his best interests to do so.  The district court



          explained to Gray that "there is no question in my  mind that you



          were  hesitant  in pleading;  but I  have  to conclude  that your



          hesitation was  brought about  not so  much  from your  protested



          innocence as much as it is from the penalty that you faced."1



                                       ANALYSIS
                                       ANALYSIS



                    A.   Applicable Legal Principles
                    A.   Applicable Legal Principles
                         ___________________________



                    While a  defendant has no absolute right  to withdraw a



          guilty plea,  United States  v. Ribas-Dominicci,  50 F.3d  76, 78
                        _____________     _______________



          (1st Cir. 1995), a district court may allow such a request upon a



          showing of "a fair and just reason."  Fed. R. Crim. P. 32(d); see
                                                                        ___



          also Ribas-Dominicci,  50  F.3d at  78; United  States v.  Cotal-
          ____ _______________                    ______________     ______



          Crespo,  47  F.3d  1, 3  (1st  Cir.  1995).    We  have  recently
          ______



                              
          ____________________



          1  The Presentence Report  for Gray had not yet been  prepared by

          the date of the hearing on Gray's motion to withdraw his plea.



                                         -5-



reiterated  that  the factors  to  be  considered in  determining



          whether  there  is  such   a  reason  are:    1)  the  force  and



          plausibility of  the  proffered  reason;  2) the  timing  of  the



          request;  3)  whether  the   defendant  has  asserted  his  legal



          innocence;  and  4)  whether  the  parties  had  reached  a  plea



          agreement.   Cotal-Crespo,  47 F.3d  at 3-4.   These  factors are
                       ____________



          relevant to the ultimate  issue to be addressed,  namely, whether



          the  plea  was "knowing,  voluntary  and  intelligent within  the



          meaning of [Fed. R. Crim. P.] 11."  Id. at 3.
                                              __



                    We  have explained  that by entering  a guilty  plea, a



          defendant effectively waives several constitutional rights.   For



          that waiver to be valid, the  plea must amount to a voluntary and



          intentional  relinquishment or  abandonment of  a known  right or



          privilege.  Id. at 4 (citing McCarthy v.  United States, 394 U.S.
                      __               ________     _____________



          459,  466  (1969)).   Rule  11  was  intended  to ensure  that  a



          defendant  who pleads guilty does so with an understanding of the



          nature of the charge and the consequences of the plea.  Id. at 4.
                                                                  __



          We have  identified the  three "core  concerns" of Rule  11:   1)



          absence  of coercion;  2)  the defendant's  understanding of  the



          charges; and 3) the defendant's  knowledge of the consequences of



          the guilty plea.  Id.   While technical violations of Rule 11 may
                            __



          often be deemed harmless, a total failure  to address one of Rule



          11's  "core concerns" mandates that the guilty plea be set aside.



          Id.  In the absence of such a "total failure," the question to be
          __



          determined  is  whether  deficiencies  in  the  Rule  11  hearing


-6-



affected the defendant's "substantial rights."  Fed. R. Crim.  P.



          11(h); see also Cotal-Crespo, 47 F.3d at 5.
                 ________ ____________



                    In determining  whether there  has been a  violation of



          one of  the core concerns of  Rule 11, we review  the totality of



          the  circumstances surrounding the  Rule 11 hearing  at which the



          defendant pled  guilty.  Cotal-Crespo,  47 F.3d  at 4.   We  have
                                   ____________



          explained that "[w]hat is  critical is the substance of  what was



          communicated  by the trial court, and what should reasonably have



          been understood by  the defendant,  rather than the  form of  the



          communication."  Id. at 4-5.
                           __



                    We will reverse a district court's decision disallowing



          the  withdrawal  of a  guilty  plea  only  upon a  showing  of  a



          "demonstrable  abuse of  discretion."   Id. at  5.   The district
                                                  __



          court's subsidiary findings of fact in connection  with the plea-



          withdrawal motion are reviewed  only for clear error.   Id.  With
                                                                  __



          these principles in mind, we turn to Gray's claims.



                    B.   Was  Gray's guilty  plea "voluntary
                    B.   Was  Gray's guilty  plea "voluntary
                         ___________________________________

                         and intelligent"?
                         and intelligent"?
                         ________________



                    Gray claims that because of certain deficiencies in his



          Rule  11 hearing, his guilty  plea was not  given voluntarily and



          intelligently.   Although Gray offers several  grounds to support



          his claim, we find that  only one of them merits discussion.   In



          his  motion to withdraw his plea, Gray stated essentially that he



          did not understand that he was pleading to a crime with a minimum



          ten-year sentence.   He claims now that  this misunderstanding of



          the  consequences of  his  plea "tainted  his  decision to  plead


-7-



guilty," and constitutes  a violation  of one of  Rule 11's  core



          concerns.  Although it is a close question, we agree.



                    When  asked by the court at his Rule 11 hearing whether



          he  understood  "what  the  maximum punishment"  could  be,  Gray



          responded,  "Not  exactly,"  thus   alerting  the  court  to  his



          uncertainty about the consequences  of his plea.  In  its attempt



          to  explain  these  consequences, however,  the  court mistakenly



          stated,  "The maximum punishment is ten years to life." (Emphasis
                        _______



          added).   This statement  was incorrect;  in fact,  the mandatory
                                                                  _________



          minimum sentence for  the crime to which Gray pled guilty was ten
          _______



          years,  and  the  court  had  no  discretion  over  this  minimum



          sentence.   Moreover, this incorrect  explanation was exacerbated



          by the court's subsequent  statement to Gray that "the  matter of



          your sentence  is  up to  me," implying  that the  length of  the



          sentence was  discretionary rather than mandatory.  We think that



          based  on these  statements,  a defendant  could have  reasonably



          concluded that  ten  years  was  the  maximum  sentence,  at  the
                                                _______



          discretion  of  the court,  and that  by  pleading guilty  it was



          possible that he could receive a sentence of less than ten years.



                    The  government  concedes  that  the  district  court's



          incorrect  explanation of Gray's sentence was  "short of ideal." 



          The government nevertheless argues that, when considered in light



          of the fact that Gray had that morning signed the plea agreement,



          which specifically sets  forth the  applicable minimum  mandatory



          sentence  of  ten years,  the  court's mistake  should  be deemed



          harmless.  This argument  ignores the plain language of  Rule 11,


-8-



stating that "the court must address the defendant personally  in



          open  court and inform the  defendant of, and  determine that the
                                                    _______________________



          defendant understands," the matters enumerated in Rule 11.   Fed.
          _____________________



          R.  Crim. P. 11(c) (emphasis added).  We have held that "reliance



          on a written document is not a sufficient substitute for personal



          examination  by the  court" in  ascertaining that Rule  11's core



          concerns  are addressed.   United  States v.  Medina-Silverio, 30
                                     ______________     _______________



          F.3d 1, 3  (1st Cir. 1994) (internal quotations omitted).    When



          asked at the hearing, Gray clearly stated under oath that  he did



          not  fully understand  his potential  sentence, despite  the fact
          ___                                             _______



          that  he  had signed  the plea  agreement  that morning.   Gray's



          signature  on  the  plea  agreement  is  therefore   insufficient



          indication of his actual understanding of the consequences of his



          plea,  and  thus  cannot  cure or  obviate  the  court's mistaken



          explanation of the applicable sentence.



                    We think that the substance of what was communicated to



          Gray, specifically the district court's  incorrect and misleading



          explanation of the  mandatory minimum sentence, could  have led a



          reasonable person to misunderstand the consequences of his guilty



          plea  in this  context, thus  implicating one  of Rule  11's core



          concerns.



                    Although  the court's error is  not a "total failure to



          address"  one of Rule  11's core  concerns, see  Cotal-Crespo, 47
                                                      ___  ____________



          F.3d  at  5,  we  cannot  say  with  any  certainty  that  Gray's



          reasonable misunderstanding  of his  sentence did not  affect his



          substantial rights within the  meaning of Rule 11.   In fact, the


-9-



record  indicates, and  the government  even suggests,  that Gray



          decided  to withdraw his guilty plea only after learning the true



          consequences  of  his  decision  through   discussions  with  his



          counsel.   It seems likely, at  the very least, that  if Gray had



          clearly and  accurately understood  the consequences of  a guilty



          plea,  he would  have  decided differently.    The court's  error



          leading  to Gray's  misunderstanding  therefore  affected  Gray's



          substantial rights, and Gray's guilty plea cannot be said to have



          been given voluntarily and  intelligently.2  Accordingly, we hold



          that  the  district  court  erred  in  denying  Gray's  motion to



          withdraw his guilty plea.3



                    The  judgment of  conviction  and sentence  is vacated.
                    ______________________________________________________



          The guilty plea is set aside and the case is remanded for further
          _________________________________________________________________



          proceedings consistent with this opinion.
          ________________________________________


____________________



          2   We recently rejected a somewhat similar challenge as harmless

          error.  In  United States v. L pez-Pineda, 55  F.3d 693 (1st Cir.
                      _____________    ____________

          1995), the appellant contended that the Rule 11 plea colloquy had

          been  deficient due  to  the failure  of  the district  court  to

          identify the applicable minimum mandatory sentence.  Id. at  696.
                                                               __

          The   four-part  test   for   assessing  such   Rule  11   claims

          (plausibility of  grounds for  requesting plea change,  timing of

          request,  assertion  of  innocence,  and   legal  sufficiency  of

          original Rule  11 hearing), requires  a different result  in this

          case.   First,  Gray advances  a  plausible basis  for requesting

          vacation of his  guilty plea  and for failing  to understand  the

          sentencing consequences  of his  guilty plea,  see supra  at 8-9,
                                                         ___ _____

          whereas  L pez-Pineda tendered a  highly implausible explanation.

          Second, L pez-Pineda complained only  after his sentence had been

          imposed.   Id. at 697.  Third, unlike Gray, L pez-Pineda asserted
                     __

          no claim of innocence.  Id.
                                  __



          3   Because we find  that Gray misunderstood  the consequences of

          his guilty  plea and reverse on this basis, we do not address his

          other arguments on appeal.



                                         -10-