Revised November 30, 2001
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 00-40920
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENCARNACION LUJANO-PEREZ,
Defendant-Appellant.
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No. 00-40924
ANTONIO MATA-ORTIZ,
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JUAN TORRES-RODRIGUEZ,
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No. 00-40972
JOSE EFRAIN GARCIA-LUNA,
Appeals from the United States District Court for the Southern District of Texas November 26, 2001
2 Before JONES, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Encarnacion Lujano-Perez, Antonio Mata-Ortiz, Juan Torres-
Rodriguez, and Jose Efrain Garcia-Luna, all Mexican natives and
citizens, pleaded guilty to reentering the United States after
deportation under 8 U.S.C. § 1326. They each received enhanced
sentences because they had each been convicted of an aggravated
felony prior to their deportation. 8 U.S.C. § 1326(b). All four
here now challenge the voluntariness of their guilty pleas because
the trial court did not comply with the admonishment requirements
of FED. R. CRIM. P. 11. Because we conclude that the trial court’s
failure to admonish the defendants of the nature of the charge, as
required by Rule 11, was not harmless error, we vacate the
conviction and sentence of each defendant and remand these cases
for further proceedings consistent with this opinion.
I. BACKGROUND
Encarnacion Lujano-Perez was deported on April 29, 1999.
Without the Attorney General’s permission, he reentered the United
States on May 2, 1999. Border Patrol agents arrested him in
Laredo, Texas, on March 30, 2000, and he was indicted for unlawful
reentry on April 18, 2000. Prior to this deportation, Lujano-Perez
had been convicted in Florida for Attempted Sexual Battery of a
Child.
Antonio Mata-Ortiz was deported on October 12, 1999. Without 3 the Attorney General’s permission, he reentered the United States.
Border Patrol agents arrested him in Laredo, Texas, on March 26,
2000, and he was indicted for unlawful reentry on April 18, 2000.
Prior to his deportation, Mata-Ortiz had been convicted in Denton,
Texas, for Aggravated Assault and Murder.
Juan Torres-Rodriguez was deported on June 24, 1999. Without
the Attorney General’s permission, he reentered the United States
on March 29, 2000. Border Patrol agents arrested him in Laredo,
Texas, on March 29, 2000, and he was indicted for unlawful reentry
on April, 18, 2000. Prior to his deportation, Torres-Rodriguez had
been convicted in Palm Beach, Florida, for Cocaine Possession.
Jose Efrain Garcia-Luna was deported on February 12, 2000.
Without the Attorney General’s permission, he reentered the United
States. Border Patrol agents arrested him in El Cenizo, Texas, and
he was indicted for unlawful reentry on April 4, 2000. Prior to
his deportation, Garcia-Luna had been convicted in Chicago,
Illinois, for Delivery of a Controlled Substance.
All four defendants pleaded guilty to violating 8 U.S.C.
§ 1326(b)’s prohibition on reentering the United States after
deportation without permission from the Attorney General. Garcia-
Luna was found guilty at a hearing before the district court on May
22, 2000. The other three defendants, Lujano-Perez, Mata-Ortiz,
and Torres-Rodriguez, were found guilty at a hearing before the
same district court on May 23, 2000.
The defendants each appeal here, arguing that their pleas were
4 rendered involuntary by the district court’s failure, at their
rearraignment hearings, to properly admonish them of their rights
as Rule 11 requires. The government concedes that Rule 11 was not
complied with, but nonetheless urges us to affirm the defendants’
convictions because the district court’s deviation from the rule
amounted to harmless error.
1. The May 22 Hearing
On May 22, 2000, Garcia-Luna, along with five other defendants
unrelated to this case, appeared and participated in a
rearraignment hearing before the district court. The judge began
by addressing the whole group. First, he told the group that if
they could not understand the proceedings, they needed to let him
know because silence would be interpreted as understanding.
While still addressing the entire group, the judge then
confirmed that (1) the defendants wished to plead guilty; (2) the
defendants understood they were under oath; (3) the defendants’
pleas were not the result of threats or coercion; (4) the
defendants had not taken drugs or alcohol within the prior 24
hours; (5) the defendants did not have any mental or physical
problems that limited their ability to understand what was
happening; (6) the defendants had not been known by any names
different than those charged in the indictment; (7) the defendants
understood their right to appointed counsel if they could not
afford an attorney; (8) the defendants were satisfied with their 5 attorneys; (9) the defendants understood their right to a jury
trial and the presumption of innocence; and (10) the defendants
understood that pleading guilty waived their right to a jury trial.
The judge then addressed the defendants individually. When he
reached Garcia-Luna’s case, he asked the Assistant United States
Attorney (AUSA) to present the court with the “factual basis” of
the charge. The AUSA described the circumstances of Garcia-Luna’s
arrest, and informed the court that Garcia-Luna had a prior
aggravated felony conviction for the sale of cocaine. The court
confirmed the existence of the conviction with Garcia-Luna and then
confirmed that he understood, because he was an aggravated felon,
the maximum sentence he faced. Finally, the court asked whether
Garcia-Luna would like to say anything about the charge. Garcia-
Luna answered with: “Everything that is being said has already been
given to my attorney.” The court then found him guilty.1
2. The May 23 Hearing
On May 23, 2000, Lujano-Perez, Mata-Ortiz, and Torres-
Rodriguez, along with two other defendants unrelated to this case,
appeared and participated in a rearraignment hearing before the
same district court. The judge again began by addressing the whole
group. First, he told the group that if they could not understand
the proceedings, they needed to let him know. He also reminded
1 He was sentenced to 48 months’ incarceration at a separate sentencing hearing on August 10, 2000. 6 them that, even though they were before the court as a group, they
had the right to an individual audience with their counsel, and
explained that they could ask the court questions about their case.
confirmed that (1) the defendants wished to plead guilty; (2) the
defendants understood they were under oath; (3) the defendants had
not failed to disclose that they had been known by any names
different than those charged in the indictment; (4) the defendants’
pleas were not the result of threats; (5) the defendants did not
have any medical or psychological problems that limited their
ability to understand what was happening; (6) the defendants
understood their right to appointed counsel if they could not
afford an attorney; (7) the defendants were satisfied with their
attorneys; (8) the defendants understood their right to a jury
trial and the presumption of innocence; and (9) the defendants
understood that pleading guilty waived their right to a jury trial.
The judge then addressed the defendants individually.
Beginning with Torres-Rodriguez’s case, he asked the AUSA for the
factual basis of the charge. The AUSA described the circumstances
of Torres-Rodriguez’s arrest, and informed the court that he had
several prior misdemeanor convictions and possibly an arrest for
Burglary of a Habitation. The court asked Torres-Rodriguez if,
aside from the allegations of previous misconduct, the rest of the
AUSA’s statement was correct. Torres-Rodriguez replied: “Yes, but
I didn’t do anything.” The court again asked, and Torres-Rodriguez
7 confirmed, that he had returned to the United States without
permission after being deported. Because the AUSA was unsure about
Torres-Rodriguez’s criminal history, it advised the court that he
should be admonished about the maximum penalty range for a
convicted aggregated felon. The court confirmed he understood the
punishment range and then found him guilty.2
Next, the court addressed Mata-Ortiz. At the court’s request,
the AUSA gave a brief factual statement about his arrest and
informed the court that he had prior convictions for Aggravated
Assault and Murder. The judge confirmed with Mata-Ortiz that the
factual statement was correct and that he understood the maximum
possible sentence. The court then found him guilty.3
Finally, the court addressed Lujano-Perez. The AUSA gave a
brief factual statement about the circumstances of Lujano-Perez’s
arrest, and informed the court that he had been convicted of
Battery prior to his deportation. The court confirmed that Lujano-
Perez understood the possible maximum penalty, and then found him
guilty.4
2 At a sentencing hearing on August 14, 2000, the existence of a prior conviction for cocaine possession was confirmed, and he was sentenced to 46 months’ incarceration for illegal reentry. The court also revoked his probation that he was serving for another offense and ordered him to serve an additional 3 months, to run consecutive to his 46-month sentence. 3 At a sentencing hearing on August 9, 2000, he was sentenced to 57 months’ incarceration. 4 At a sentencing hearing on August 9, 2000, he was sentenced to 70 months’ incarceration. 8 II. RULE 11
Rule 11 of the Federal Rules of Criminal Procedure governs
pleas. And it sets forth the procedures the court must follow
before accepting a plea of guilty or nolo contendere.
Specifically, the court must address the defendant personally in
open court to explain, and ascertain that the defendant
understands, certain information and rights: the nature of the
charge; the mandatary minimum and maximum penalties (including any
special parole or supervised release term); the fact that the court
is required to consider sentencing guidelines, but may depart from
them under some circumstances; the court’s ability to order
restitution to victims (when applicable); the defendant’s right to
an attorney at every stage of the proceeding (and the right to have
one appointed, if necessary); the defendant’s right to plead not
guilty; the defendant’s right to a jury trial; the defendant’s
right at trial to assistance of counsel, to confront and cross-
examine adverse witnesses, and the right against compelled self-
incrimination; that pleading guilty waives the right to trial; that
answers related to the plea, given to the court under oath, can be
the subject of a perjury charge; and the terms of any agreement
waiving the right to appeal or collaterally attack the sentence.
The court must also address the defendant personally in open court
to determine that the plea is voluntary and not the result of
threats or coercion. Finally, the court is required to ask whether
the plea is the result of negotiations with the government’s 9 attorney. The court may not accept a guilty plea unless it
determines, after inquiry, that there is an adequate “factual
basis” for the plea.
Any variance from these procedures is subject to a harmless-
error analysis, FED. R. CRIM. PROC. 11(h), and we review such
challenges de novo. United States v. Cuevas-Andrade, 232 F.3d 440,
443 (5th Cir. 2000). Specifically, we look to whether (1) the
trial court failed to comply with the rule, and (2) if so, whether
this noncompliance affected the defendant’s substantial rights such
that “knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to
plead guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th Cir.
1993) (en banc).
III. ANALYSIS
Here, there is no dispute that the trial court did not comply
with Rule 11. The record reflects that the court failed to:
address the defendants personally in open court; explain the nature
of the charge; explain the effect of any supervised release term;
explain that the court was required to consider applicable
sentencing guidelines, but could depart from those in certain
circumstances; explain the defendants’ right to plead not guilty;
explain the defendants’ right to be tried by a jury; explain that
at trial the defendants had the right to an attorney; inform the
10 defendants of their right against self incrimination at their
trial; address each defendant personally to ascertain that his plea
was not the result of threats or coercion; and inquire whether the
defendants’ guilty pleas were the result of negotiations or
discussions with the government.
The defendants limit their complaints here to the trial
court’s failure to explain: the nature of the charge; the right to
plead not guilty; the right to a jury trial; the right to counsel
at trial; and the right against compelled self incrimination.
Accordingly, any complaints about the other variations are waived.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The Nature of the Charge
Rule 11's requirement that defendants understand the “nature
of the charge” against them refers to the elements of the offense.
United States v. Calderon, 243 F.3d 587, 589 (5th Cir. 2001).
Here, the record reflects that the elements of 8 U.S.C. § 1326, the
statute the defendants were charged with violating, were never
discussed during the plea hearings. Further, the indictment was
not read, and there were no written plea agreements. Nonetheless,
the government asserts that its recital of the “factual basis,”
along with the fact that the charge is simple and easy to
understand, renders the court’s failure to explain the nature of
the charge harmless error. We disagree.
This Circuit has never found that recitation of a “factual
11 basis,” which is a distinct and separate requirement under Rule 11,
obliterated the need to ensure that a defendant understands the
nature of the charge. Rather, in every case where we have found
the failure to explain the nature of the charge to be harmless,
there has been evidence, other than recitation of the factual
basis, indicating that the defendant understood the nature of the
charge. See, e.g., Cuevas-Andrade, 232 F.3d at 444 (holding
failure to explain nature of charge harmless because the indictment
was read to the defendant, the defendant signed a written plea
agreement listing the elements of the charge, and the defendant’s
attorney reviewed the charges with the defendant); United States v.
Smith, 184 F.3d 415, 417 (5th Cir. 1999) (holding failure to
explain nature of charge harmless because the indictment was read
to the defendant, and her attorney stated that he had reviewed the
indictment and charges with her and that she understood them and
voluntary pleaded guilty); United States v. Reyna, 130 F.3d 104,
111 (5th Cir. 1997) (holding failure to explain nature of charge
harmless because the indictment was read to the defendant, the
defendant stated he understood the charges, and the court asked the
defendant several questions about his understanding of the nature
of the offense); United States v. Guichard, 779 F.2d 1139, 1145-46
(5th Cir. 1986) (holding failure to explain nature of charge
harmless because the indictment was read to the defendant, the
defendant stated he had discussed charges with his attorney, and
12 the court inquired about the defendant’s understanding of the
charge).
In support of its argument, the government relies almost
exclusively on one First Circuit case. United States v. Martinez-
Martinez, 69 F.3d 1215 (1st Cir. 1995). In Martinez, the court
noted that the trial court’s failure to explain the nature of the
charges “stretched the outer boundaries of Rule 11's express
mandate,” but, nonetheless, it found the failure to be harmless
error. Id. at 1222. It explained that “[r]ather than exalting
form over substance, on appeal we employ a ‘totality of the
circumstances’ test to determine if a core violation has indeed
occurred.” Id. at 1220.
The government here emphasizes the Martinez court’s statement
that “[i]f, during the plea colloquy, the government’s statement or
the defendant’s own version of the facts sets forth all elements
and conduct of the offense, admission to that conduct sufficiently
establishes the defendant’s understanding of the charge.” Id. at
1220. However, a closer look at the case shows that, even though
the court stated that recitation of a factual basis was enough to
render the failure to explain the charge harmless, the court did
not rely solely on this fact. Rather, the court emphasized that
(1) Martinez acknowledged twice during the plea hearing that she
had discussed the charges with her counsel and understood them, (2)
she waited to plead guilty until the day of trial (after months of
13 trial preparation), (3) she signed a written plea agreement, and
(4) the court did ask her if she had read the charges and consulted
with her counsel about them. Id. at 1221-22.
Here, in contrast with the facts in Martinez, it is undisputed
that neither the judge nor the prosecutor described the elements of
the charge; the indictment was not read; and the judge did not ask
the defendants whether they understood the charges. Thus, none of
the safeguards were in place that we have in the past held might
render a judge’s failure to personally apprise the defendant of the
nature of the charge nonetheless harmless. Accordingly, the sole
basis for us to find harmless error would be that the AUSA recited
the factual basis for the charges.
However, Rule 11 requires both that the judge explain the
nature of the charge, FED. R. CRIM. P. 11(c)(1), and that the judge
ascertain that there is a factual basis for the charge. FED. R.
CRIM. P. 11(f). Consequently, if we were to hold, as the government
urges us to, that wholly failing to admonish defendants of the
nature of the charge is harmless whenever the trial court
establishes a factual basis, we would, in essence, obliterate the
need to ever comply with Rule 11's express requirement that the
court explain the nature of the charge. This we decline to do.
Accordingly, we hold that the trial court’s failure to admonish the
14 defendants of the nature of the charge was harmful error.5
We also take this opportunity to reiterate that, although
noncompliance with Rule 11 is subject to harmless-error review, the
importance of adhering to all Rule 11's requirements cannot be
overstated. Indeed, when the harmless-error subdivision (h) was
added to Rule 11, the Advisory Committee cautioned that:
[S]ubdivision (h) should not be read as an invitation to trial judges to take a more casual approach to Rule 11 proceedings. It is still true, as the Supreme Court pointed out in McCarthy, that thoughtful and careful compliance with Rule 11 best serves the cause of fair and efficient administration of criminal justice, as it “will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.”
FED. R. CRIM. P. 11 (advisory committee’s notes to 1983 amendment)
5 We note that this result is consistent with the Advisory Committee Notes to Rule 11, which state that:
There would not be harmless error under subdivision (h) where, for example, as in McCarthy, there had been absolutely no inquiry by the judge into defendant’s understanding of the nature of the charge and the harmless error claim of the government rests upon nothing more than the assertion that it may be “assumed” defendant possessed such understanding merely because he expressed a desire to plead guilty.
FED. R. CRIM. P. 11 (advisory committee’s notes to 1983 amendment) (citing McCarthy v. United States, 394 U.S. 459 (1969)). 15 (quoting McCarthy, 394 U.S. at 472).
IV. CONCLUSION
Because our conclusion that the trial court’s failure to
explain the nature of the charge mandates reversal, we need not
reach the defendants’ contention that other portions of the plea
colloquy were also deficient. The conviction and sentence of each
defendant is vacated and remanded to the trial court for further
proceedings consistent with this opinion.
16 EDITH H. JONES, dissenting:
With due respect, my colleagues’ conclusion that a single
technical Rule 11 omission by the district court is not harmless error
returns us to the law as it was nine years ago, before this court took
Rule 11(h) seriously.6 Until the en banc decision in United States
v. Johnson, 1 F.3d 296-302, (5th Cir. 1993) (en banc), this court
evaluated Rule 11 compliance in terms of three “core concerns,” the
omission of any one of which would automatically result in the vacatur
of a guilty plea. United States v. Dayton, 604 F.2d 931 (5th Cir.
1979) (en banc). One of Dayton’s “core concerns,” the one at issue
here, was that the court must address a defendant concerning the
nature of the charge against him. Fed. Crim. Rule Proc. 11(c)(1).
Johnson involved another of the core concerns, but this court rejected
Dayton’s per se approach in favor of the harmless error analysis
specified by Rule 11(h). The Johnson test, given lip service by the
majority, identifies reversible Rule 11 error only if the court’s non-
compliance affected the defendant’s substantial rights such that his
“knowledge and comprehension of the full and correct information would
6 Appellants also complain that the district court omitted from its guilty plea advice other information required by Rule 11, e.g. the defendant’s right to plead not guilty and proceed to a jury trial, to counsel at trial, to confront witnesses, and not to incriminate himself. The majority do not discuss these omissions. I would find them insufficient to overturn the guilty plea, based on the whole record and the analysis in United States v. Cuevas- Andrade, 232 F.3d 440 (5th Cir. 2000). 17 have been likely to affect his willingness to plead guilty.” 1 F.3d
at 302.
The majority opinion dwells on the trial court’s admitted
non-compliance with Rule 11, but it never discusses how the
appellants’ substantial rights were violated by the court’s failure
to read them their indictments or otherwise explain the charge of
illegal reentry. 18 U.S.C. § 1326. There is no basis in the record
for a conclusion that, had appellants been specifically informed at
the plea colloquy of the nature of a § 1326 violation, they would not
have pled guilty and would have insisted on going to trial.
The majority assert that the “sole” basis for a finding of
harmless error is the Assistant U.S. Attorney’s recitation of the
factual basis of the charge at the guilty plea colloquy. This
assertion suffers from two flaws. It misstates Johnson, which holds
that the entire trial court record must be consulted to evaluate the
effect of a Rule 11 error. 1 F.3d at 302. It also misapprehends the
record. These appellants certainly knew what charge they were
pleading guilty to.
The crime of illegal reentry is not recondite. It consists
of a person’s being found in the United States without the permission
of the Attorney General after having been previously deported. All
four appellants responded affirmatively to the court’s introductory
query whether they wished to plead guilty. The factual resumés
recited by an AUSA at the court’s request embody the simple elements
of a § 1326 violation for each appellant.
18 As to Garcia-Luna, the AUSA stated:
Mr. Garcia Luna is a native and citizen of Mexico, Your Honor. He was encountered by Border Patrol wading the – or crossing the Rio Grande River at a location near El Cenizo, Texas, at about 10:00 in the morning on March the 9th, 2000, entering without immigration inspection. He has – records show that he has been previously deported from Laredo on February the 12th, 2000. He has – records show that he has not applied for or received permission from the attorney general to re-enter the United States. We believe Mr. Garcia is an aggravated felon. His criminal history includes a 1995 conviction for sale of cocaine. He was sentenced to 12 years in that offense.
Garcia-Luna admitted his crime in the plea colloquy.
The facts pertaining to Torres-Rodriguez, as recited by the
AUSA, are as follows:
The defendant is a citizen and national of Mexico. On March 29th of this year he was apprehended by Border Patrol at the river banks here in Laredo, Texas. He had just crossed. On June 24, 1999, he was deported back to Mexico through Laredo. This was subsequent to several misdemeanor convictions for theft out of Travis County. It also appears that he was arrested for a burglary of a habitation. I don’t know what has happened with that case, Your Honor. I can’t tell from my file. He has not received permission to re-enter or reapply for readmission to enter the United States from the attorney general.
Torres admitted that the factual basis was true.
The factual basis for Mata was given by the government:
His true name, Your Honor, is Turruviartez-Sanchez. He is a native and citizen of the Republic of Mexico. He was apprehended by Border Patrol agents performing line-watch duty near Laredo Community College on the 26th of March of this year at about 10:00 p.m. just at the time of this entry. He was previously deported through Laredo on the 12th of October of 1999. And he had neither applied for nor received permission of the attorney general to re-enter after deportation.
We believe he qualifies as an aggravated felon. His criminal history includes a 1992 aggravated assault and a
19 1995 murder intending serious bodily injury for which he served time in the Texas Department of Criminal Justice Institution.
Mata admitted the truth of the facts concerning his reentry.
The Government gave the following factual basis for Lujano-
Perez:
Mr. Lujano-Perez is also a native and citizen of the Republic of Mexico, Your Honor. He was apprehended on the 30th of March of this year at 11:00 p.m. by Border Patrol agents. They were following up on a tip that the defendant was an illegal alien living in the Santa Fe subdivision of Laredo, Texas, and working at a restaurant called Las Asadas. He confirmed his illegal status and admitted he had last entered the United States on the 2nd of May of 1999 by making a false claim of United States citizenship at the port of entry, bridge number two, here in Laredo. He was last deported on the 29th of April through Laredo and has neither applied for nor received permission of the attorney general to re-enter after that deportation. [emphasis added.]
We do believe he qualifies as an aggravated felon. His criminal history includes a battery for which he received a 15-year sentence and a number of prior crimes for which the dispositions are not known by the investigating officers.
Lujano acknowledged the truth of the facts regarding his illegal
entry. Based on the simplicity of the charge, and the appellants’
understanding, emphasized by the court, that they could seek
clarification at any time, it is a close question whether these
factual resumés alone sufficiently identified the nature of the
charge. This court has noted that, “[n]either Rule 11 nor the case
law specifies the minimum that the district court must do to ‘inform
the defendant . . . of the nature of the charge’”. United States v.
Reyna, 130 F.3d 104, 110 (5th Cir. 1997).
20 The record is rife with additional confirmation of the
appellants’ knowing intent to plead guilty to the crime with which
they were charged. All of the appellants were represented by the
Federal Public Defender. This court should be able to rely on the
public defender’s expertise in advising their clients. We should
assume that where, as here, each defendant admitted to the judge that
he committed the acts that form the basis of an illegal re-entry, he
did so on the advice of competent counsel. None of the defendants
raised a peep when the court asked if they were satisfied with their
counsel and if they were under any compulsion to plead guilty. In
fact, defense counsel raised no objections to the factual resumés
recited by the AUSA’s, to the clients’ assent to the resumés, or to
the crime summaries contained in each appellant’s PSR. No defense
counsel called the trial court’s attention to its omissions from the
precise Rule 11 “script.” More to the point, no defense counsel moved
in the trial court to withdraw his client’s guilty plea on the basis
of ignorance or involuntariness.
Finally, each of the defendants appended an explicit
admission of guilt to his PSR in order to qualify for a 3-level
reduction in the sentencing guidelines, a reduction granted by the
court.7 Since none of the defendants received anywhere near the
7 One example of these statements was executed on behalf of Lujano-Perez:
I, Encarnacion Lujano-Perez, admit that I am an alien that entered the United States without obtaining permission from the Attorney General of the United States. I admit that I was 21 maximum 20-year statutory sentence for his admitted offense, and all
were sentenced at the bottom of the guidelines range, there is no
objective basis for dissatisfaction with the outcome of the
prosecution. Indeed, it cannot be emphasized too strongly that none
of the appellants contends he would have insisted on going to trial
if he had been explicitly informed by the court of the “nature” of a
section 1326 charge.
Rather than examine the objective circumstances surrounding
the trial court’s errors, the majority express fear that allowing the
factual resumé to fulfill the function of the nature-of-charge
explanation will “obliterate” a particular requirement of Rule 11.
But their holding threatens to “obliterate” Rule 11(h) and the Johnson
harmless error test: harmless error comes into play whenever a trial
court has “obliterated” some facet of Rule 11.
The majority suggest in a footnote that their analysis
comports with the Advisory Committee Notes to Rule 11, which eschew
a harmless error claim where “the government rests upon nothing more
than the assertion that it may be ‘assumed’ defendant possessed such
understanding [of the charge against him] merely because he expressed
a desire to plead guilty.” Majority Opn. at n.5, citing Fed. R. Crim.
P. 11 (advisory committee notes to 1983 amendment). But as has been
deported before I re-entered the United States. I was found by a U.S. Border Patrol Agent in Laredo, Texas.
And at sentencing, Garcia-Luna apologized for having “entered illegally into the country.” 22 demonstrated, the government does not rely solely on these appellants’
expressed desire to plead guilty, but upon many other indicia of their
knowledge and understanding that they committed the federal crime of
illegal re-entry. The same Advisory Committee Notes also caution that
Rule 11 does not prescribe a “litany or other ritual which can be
carried out only by word-for-word adherence to a set ‘script.’” Id.
See also United States v. Henry, 113 F.3d 37, 41 (5th Cir 1997) (Rule
11 does not require ritual adherence to its precise contours for a
guilty plea to be upheld.)
This court has frequently addressed the sufficiency of Rule
11 colloquies following Johnson. In a few decisions, we have found
that a defendant’s substantial rights were violated by errors such as
serious, prejudicial misinformation about the punishment range or the
omission of a minimum prison term.8 No post-Johnson case I have
found, published or unpublished, isolates one technical omission and
holds it a reversible error without assessing the objective, likely
effect on the appellant’s willingness to plead guilty in light of the
whole trial court record. On the contrary, even a series of technical
omissions has been found harmless under the circumstances. United
States v. Cuevas-Andrade, 232 F.3d 440 (5th Cir. 2000). And in United
States v. Vasquez-Bernal, 197 F.3d 169 (5th Cir. 1999), where the
8 See United States v. Herndon, 7 F.3d 55 (5th Cir. 1993); United States v. Whyte, 3 F.3d 129 (5th Cir. 1993); see also United States v. Suarez, 155 F.3d 521 (5th Cir. 19998) (defendant’s statement during rearraignment that he was “only guilty of possession” suggested he did not understand that he was charged with possession of cocaine with intent to distribute). 23 trial court failed to expressly advise an illegal re-entrant of the
applicable range of punishment, this court held that without proof,
or even an allegation, that the omission affected his guilty plea, the
Rule 11 complaint was meritless. See also United States v. Moralez-
Sosa, 191 F.3d 586, 587-88 (5th Cir. 1999) (“Sosa has never alleged
that full compliance with Rule 11 would have affected his decision to
plead guilty, nor does the record support such a suggestion.”).
The purpose of these appeals is difficult to discern. While
I heartily agree that it is better practice for the district court to
adhere closely to Rule 11, I also find it inconceivable that these
appellants will not plead guilty upon remand. The public defender has
made no effort to demonstrate substantial harm to these appellants’
rights from the trial court’s technical Rule 11 errors. Moreover, we
were assured by an AUSA at oral argument that procedures are now in
place to advise the district court of omissions in Rule 11 colloquies.
As we said in Vasquez-Bernal, “the federal public defender must have
better things to do.” I respectfully DISSENT.