UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-30862
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERRY WILTZ,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana (99-CR-20-1-T)
May 9, 2001
Before JONES, DeMOSS and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Defendant Jerry Wiltz challenges several aspects of his
sentence following a guilty plea. First, he contends that the
district court did not comply with the requirements of Federal Rule
of Criminal Procedure 11 during the guilty plea colloquy. Second,
he argues that, in light of Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348 (2000), his supervised release term should be
modified. Finding that the defendant was prejudiced by the Rule 11
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. error, we remand his guilty plea as to count 13. We also modify
his supervised release term in accordance with this circuit’s post-
Apprendi case law.
BACKGROUND
Defendant Jerry Wiltz was involved in various crimes,
including conspiracy to distribute drugs, possession of firearms by
a felon, and assault on an officer. On separate occasions, the
police found both drugs and firearms on Wiltz after either
conducting surveillance or receiving tips about illegal drug
transactions.1
Wiltz and his co-defendant Atiba Pilart were initially
indicted in January of 1999 by a grand jury on four counts for
violations of the Federal Gun Control Act, the Federal Controlled
Substances Act, and for assaulting a federal officer. He pled not
guilty to each of these crimes. A superseding indictment was
returned on November 19, 1999, charging both with additional
1 For example, in 1997, police officers saw Wiltz sell cocaine, and then upon obtaining a search warrant they confiscated firearms, approximately 400 grams of crack cocaine and cocaine powder. In the summer of 1998, the police confiscated $154 and 20 grams of crack cocaine from him. In October 1998, the police detained Wiltz and three other men, and subsequently found 43 grams of crack cocaine in a nearby backyard. In January of 1999, the police received tips that Wiltz was selling heroin out of his home. After obtaining a search warrant, they arrested Wiltz. During the arrest, Wiltz assaulted a FBI special agent. They found 1/4 kilogram of heroin, $9,000, a .45 caliber submachine gun and a Lorcin 9mm semi automatic pistol, among other weapons.
2 crimes.2 One month later, Wiltz once again entered a not guilty
plea on all counts. At the same time, Wiltz and the government
were negotiating the terms of a plea agreement.
In early 2000, Wiltz agreed to plead guilty to counts 1, 2, 4,
13, 14 and 15. The remaining counts were dismissed. Before
accepting the guilty plea, the district court advised Wiltz about,
and ascertained that he understood, the maximum and minimum
penalties for each of the counts. The district court judge asked
Wiltz whether he needed the judge to further review the indictment.
The district court erred in its discussion of count 13, which
charges that the defendants “did knowingly use and carry two
firearms, to wit: a Lorcin 9mm semiautomatic pistol, serial number
L102137, and a .45 caliber semi-automatic submachine gun, serial
2 The counts in the indictment relating to Wiltz are as follows: (count 1) conspiracy to distribute cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846; (count 2) conspiracy to distribute heroine, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846; (count 3) possession with intent to distribute cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1); (count 4) felon in possession of six firearms, 18 U.S.C. § 922(g)(1) and 924(a)(1); (count 5) knowingly using and carrying six firearms during a drug trafficking crime, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c)(1); (count 6) distribution of heroin, 21 U.S.C. § 841(a)(1) and 2; (count 9) possession with intent to distribute cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1); (count 10) possession with intent to distribute cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1); (count 11) possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1) and (2); (count 12) distribute of cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1) and (2); (count 13) knowingly using and possessing two firearms during a drug trafficking crime; (count 14) felon in possession of two firearms, 18 U.S.C. § 922(g)(1) and 924(a)(2); (count 15) assault of a federal officer, 18 U.S.C. § 111.
3 number 50712, during and in relation to a drug trafficking crime .
. . .” The judge advised Wiltz that “[t]he maximum possible
penalty on this is a term of imprisonment of five years” which
“must run consecutive to any other sentence that I impose upon
you.” He also advised that Wiltz could be given a term of
supervised release for up to three years on this count.3 At
another point in the colloquy, the judge told the defendants that
there was no discretion regarding count 13: “I have to impose a
five year term of imprisonment consecutive to anything else I
impose. Do each of you understand that?”
The plea agreement, signed by the Assistant United States
Attorney, Wiltz, and his attorney, likewise states that “[t]he
defendant further understands that the penalty defendant may
receive should his plea of guilty to count 13 be accepted is five
(5) years imprisonment.”
In June of 2000, the district court sentenced Wiltz to a term
of 135 months on the drug conspiracy counts, 120 months on two of
the firearms possession counts, and 36 months on the assault count,
all to run concurrently. He was also sentenced to a five year term
of supervised release for the conspiracy counts, three years for
3 The judge also explained to the defendants that they reserved the right to appeal any punishment imposed in excess of the statutory maximum and any punishment to the extent that it constituted an upward departure from the guideline range deemed most applicable by the judge. Likewise, they were advised that they could appeal their convictions if they believed that their guilty plea was unlawful or involuntary, or if there was some other fundamental defect in the proceeding.
4 the counts relating to firearms possession and one year for the
assault count, all to run concurrently. On count 13, he was
sentenced to a term of 120 months, with the sentence to run
consecutively with the other counts. This sentence lies at the
heart of the Rule 11 challenge, since the judge sentenced Wiltz to
five more years for count 13 than had been discussed at the plea
colloquy. At sentencing, Wiltz’s attorney objected to this higher
sentence. In particular, defense counsel objected to the
allegation in the pre-sentence report that Wiltz used an assault
rifle, because use and carrying of an assault rifle mandate a
consecutive sentence of ten years rather than five. Defense
counsel maintained that Wiltz pled guilty only to possession of a
9mm handgun as this allegedly was the only firearm that witnesses
testified was in Wiltz’s possession. As such, he requested that
the judge consider a downward departure from the pre-sentencing
report to the five year consecutive sentence, “which would be much
more consistent with the police reports and Mr. Wiltz and the
defense’s understanding of the factual basis and the reports.”
The district court denied Wiltz’s motion, finding that the
factual basis, record, and history of the case indicate that the 10
year sentence was correctly calculated. The judge stated that,
although he did not have any independent knowledge or specific
recollection of his colloquy with Mr. Wiltz, he knew that his
typical colloquy would have gone through these issues. However,
5 the judge indicated that he would reconsider his position if
provided with a transcript of the colloquy.
Wiltz filed a timely notice of appeal.
DISCUSSION
On appeal, Wiltz challenges both his sentence for count 13 and
his term of supervised relief. We review each challenge below.
A. Count 13
Wiltz argues on appeal that his guilty plea was neither
knowing nor voluntary because the district court misinformed him as
to the correct mandatory ten-year sentence for count 13. As such,
the district court judge did not properly follow the procedures of
Rule 11(c)(1), which require that a district court “inform the
defendant of the nature of the charge, the mandatory minimum
penalty, the maximum possible penalty, any special parole or
supervised release term, and any applicable sentencing guidelines.”
United States v. Vasquez-Bernal, 197 F.3d 169, 170 (5th Cir. 1999).
See also Fed. Rule of Crim. Proc. 11(c)(1).
When reviewing challenges to a district court’s compliance
with the requirements of Rule 11 in the plea colloquy, we “conduct
a straightforward, two-question ‘harmless error’ analysis: (1) Did
the sentencing court in fact vary from the procedures required by
Rule 11, and (2) if so, did such variance affect substantial rights
of the defendant?” United States v. Johnson, 1 F.3d 296, 298 (5th
Cir. 1993)(en banc).
6 There is no question here that the district court varied from
the Rule 11 procedures by improperly advising Wiltz about the
maximum sentence for count 13. See United States v. Still, 102
F.3d 118, 122-23 (5th Cir. 1996)(holding that “the district court
varied from the procedures required by Rule 11 when it failed to
inform [the defendant] of the mandatory minimum sentence to which
he would be subject under” one of the counts).
The substantial rights prong is violated when “‘the
defendant’s knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to
plead guilty.’” United States v. Suarez, 155 F.3d 521, 524 (5th
Cir. 1998)(quoting Johnson, 1 F.3d at 302). The variance affected
Wiltz’s substantial rights because he was given erroneous
information regarding his sentence and therefore did not fully
understand the consequences of his plea. Still, 102 F.3d at 123
(“[The defendant’s] rights were substantially affected by the
erroneous information regarding the mandatory minimum sentence
applicable to count one.”); United States v. Whyte, 3 F.3d 129,
130-31 (5th Cir. 1993)(holding that where the district court
affirmatively misstated a minimum sentencing requirement, and the
plea agreement made the same error, the risk of prejudice to the
defendant was too great and the error was not harmless). We note,
however, that both the colloquy and the indictment stated that
Wiltz was pleading guilty to knowingly using and carrying both a
7 9mm semi-automatic pistol and a .45 caliber semi-automatic
submachine gun. Likewise, the factual basis to which Wiltz pled
guilty and which he signed, states that the police found both
weapons. The only error was in the district court’s recitation of
the required penalty. Compounded with an identical error in the
plea agreement, however, the “risk of prejudice--that [Wiltz] was
misled by the court's error--is too great.” Whyte, 3 F.3d at 130.4
The parties’ only dispute lies in the appropriate remedy for
this violation. Wiltz asks this court to order specific
performance of the original plea bargain terms, i.e., to impose the
five year consecutive sentence for count 13. He argues that his
guilty plea rested significantly both on the Government’s promise
and agreement of a five year sentence on count 13, and on the plea
colloquy itself.
Conceding the Rule 11 error, the Government suggests that it
invalidates Wiltz’s guilty plea to his firearms offense as
described in Count 13. The Government argues that the appropriate
remedy for a rearraignment sentencing error is a remand for new
Rule 11 proceedings as to the count in question. We agree.
4 The Government, defense counsel, and the district court could have easily corrected this error by turning to the appropriate provision in the statute cited in count 13 of the indictment. See 18 U.S.C. § 924(c)(1)(B)(I)(“If the firearm possessed by a person convicted of a violation of this subsection–i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years.”).
8 The plea to count 13 must be vacated and the case remanded so
that Wiltz may replead. See Still, 102 F.3d at 123 (“As a result,
[the defendant’s] plea to count one must be vacated and the case
remanded to enable [the defendant] to plead to this count again.”).
Wiltz implicitly argues that the partially incorrect plea
colloquy infected the entirety of his plea agreement and thus
requires specific performance of the five-year sentence. The
defendant in Still similarly argued that the district court’s
misstatement regarding his sentence “infected” his plea to another
count “because ‘the mandatory minimum sentence [he] faced clearly
was a material factor that affected his decision to plead guilty’
. . . .” Id. As discussed in Still, “Rule 11(c) by its terms does
not contemplate overlap of the counts, but rather speaks in terms
of individual ‘charge[s] to which plea[s] [are] offered.’” Id.
Because the district court complied with the Rule 11 procedures
regarding a second count, there was no error on that count.
Applying the same reasoning, we hold that the error as to count 13
does not infect the entire plea agreement and decline to order the
extraordinary remedy of specific performance. Such a remedy would
be inconsistent with the statute proscribing the appropriate
punishment for this offense.
B. Supervised Release
Wiltz contends that the district court erred in imposing a
five-year term of supervised release, arguing that this was greater
9 than the statutory maximum applicable to the offense charged in the
indictment and therefore invalid under Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348 (2000). In particular, Wiltz asserts that
his five-year term of supervised release on counts 1 and 2 was
plainly erroneous because the sentence was based on drug quantities
not set forth in the indictment.
Because the defendant raises this argument for the first time
on appeal, we review the issue for plain error. United States v.
Meshack, 225 F.3d 556, 578 (5th Cir. 2000). Under the plain error
standard, Wiltz is required to demonstrate “(1) an error; (2) that
is clear or plain; (3) that affects the defendant’s substantial
rights; and (4) that seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Meshack, 225 F.3d at
575 (internal quotations omitted) (quoting United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)). “Under plain error
review, we correct overlong terms of supervised release.” Meshack,
225 F.3d at 578. “However, we need only adjust overlong terms of
supervised release down to what would be the longest term had
supervised release been calculated in accordance with Apprendi.”
Id.
Supervised release terms are reduced “to the maximum term
allowable by statute for [drug] possession which does not require
some showing of drug amount . . .” Meshack, 225 F.3d at 578.
Absent a specific drug quantity, Wiltz should have received a
10 maximum supervised release term of three years on counts 1 and 2.
Ordinarily, we would modify his supervised release term to three
years. See id; 21 U.S.C. § 841(b)(1)(C)(providing for a “term of
supervised release of at least 3 years”); 18 U.S.C. §
3583(b)(2))(providing, in the default supervised release statute,
for a term of supervised release of “not more than three years” for
Class C felonies); United States v. Doggett, 230 F.3d 160, 165 n.2
(5th Cir. 2000)(“Since the elements found by the jury satisfied only
a conviction under § 841(b)(1)(C), a Class C felony, Doggett's
term of supervised release could not exceed three years.”); United
States v. Kelly, 974 F.2d 22, 24-25 (5th Cir. 1992)(reducing a term
of supervised release to three years in a similar case by
harmonizing the three-year minimum in § 841(b)(1)(C) with the
three-year maximum in § 3583(b)).
The Government, however, argues that under 21 U.S.C. §
841(b)(1)(C) a defendant faces at least six years of supervised
release when he has a prior felony drug conviction. Because Wiltz
pled guilty to attempted possession of cocaine in the 24th Judicial
District Court of Jefferson Parish and received a two and one-half
year sentence, the Government maintains that his term of supervised
release is not statutorily excessive regardless of drug quantity.
The Government is correct that, typically, a defendant with a prior
11 felony drug conviction faces six years of supervised release.5
However, we are troubled by the Government’s argument for
several reasons. First, the Government raises this point for the
first time on appeal, as it did not seek the heightened penalty
during plea negotiations or sentencing. Likewise, the district
court did not take the prior conviction into account at sentencing
as Wiltz’s term of imprisonment for these counts was not enhanced
as a result of the prior conviction. If the enhanced penalty of 21
U.S.C. § 841(b)(1)(C) had been applied to Wiltz’s sentencing, he
could not receive the five-year term. He would have to be
sentenced to a supervised release term of at least six years.
Adopting the Government’s position would require that we affirm a
supervised release term that is inconsistent with the statute.
Indeed, it is curious that the Government advocates this position
at this late stage when they did not seek this sentence at the
appropriate time.
Second, it unclear from the record whether the prior
conviction qualified as a basis for the enhancement. All that we
know from the presentence report is that Mr. Wiltz pled guilty to
attempted possession of cocaine and that the prior conviction
qualified for one point under the sentencing guidelines. See
4A1.1(c); 4A1.2(e)(2). Count 4 of the indictment, to which he pled
5 A prior conviction is only a sentencing factor and need not be alleged in the indictment. Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219 (1998).
12 guilty, explains that Wiltz, “having previously been convicted of
a crime punishable by imprisonment for a term exceeding one year,
to wit: a conviction on October 31, 1996, in the Twenty-Fourth
Judicial District Court, Jefferson Parish, State of Louisiana, for
attempted possession of cocaine, in violations of LA R.S.
40:(969)(967(c)(2) . . .”
We do not know, however, whether the United States Attorney
filed an information and followed the mandatory notice procedures
of 21 U.S.C. § 851. “If the prosecution fails to comply with §
851's procedural requirements, a district court cannot enhance a
defendant’s sentence.” United States v. Steen, 55 F.3d 1022, 1025
(5th Cir. 1995). See also United States v. Levay, 76 F.3d 671, 674
(5th Cir. 1996)(“Failure on the part of the government to file,
before trial or before entry of a guilty plea, an information
stating the previous convictions, prevents a court from enhancing
a sentencing under the statute.”). “The statutory scheme . . .
contemplates two distinct categories of repeat offenders for each
possible crime.” United States v. LaBonte, 520 U.S. 751, 759, 117
S.Ct. 1673, 1678 (1997). Simply put, those who receive notice are
subject to the enhanced penalty, and those who do not are subject
to the unenhanced penalty. See id. at 759-60, 117 S.Ct. at 1678.
Likewise, for the purposes of § 841(b)(1)(C), a court may only
enhance a sentence for a prior conviction that is final, meaning
that it “is no longer subject to examination on direct appeal.”
13 United States v. Puig-Infante, 19 F.3d 929, 947 (5th Cir. 1994).
See also United States v. Hass, 150 F.3d 443, 450(5th Cir. 1998)
(“The “enhancement is authorized only if the commission of the §
841 offense occurs after the prior felony drug offense[s] has
become final.”). Because the statute related to the felon in
possession count, which references the prior conviction, does not
contain the same requirements as § 841, it does not provide a
sufficient guarantee either that the conviction was final or that
the proper notice was given.
In similar cases where courts have found no prejudice under
plain error review, because the defendants could have received an
enhancement for their prior convictions, the courts specifically
noted that informations were filed. See e.g. United States v.
Wilson, Nos. 99-6348, 99-6358, 99-6383, 2001 WL 303650,(10th Cir.
2001)6; United States v. Jones, No. 00-2531, 2001 WL 294306, *3 (7th
Cir. 2001).
Because it is unclear from the record and from the
6 In Wilson, for example, the sentencing judge had enhanced the defendant’s sentence based on drug quantity. The jury was instructed that it need only find that he had possessed a “measurable amount” of crack cocaine. This was an Apprendi error if the drug quantity increased the sentence beyond the statutory maximum for possession of a measurable amount under 21 U.S.C. § 841(b)(1)(C). The Tenth Circuit concluded that the defendant’s sentence fell within the enhanced statutory maximum of § 841(b)(1)(C) when taking into consideration the defendant’s prior drug convictions. Id. at *6. The court specifically noted that the government filed an information before trial in compliance with § 851. Id. at *5.
14 Government’s brief why Wiltz’s supervised release term was not
enhanced as a result of his prior conviction, we decline to hold
that Wiltz was not prejudiced by the five-year supervised release
term. As discussed supra, his sentence must be modified to three
years.
For these reasons, Wiltz’s guilty plea for count 13 is
vacated, and the district court’s judgment is REMANDED in part and
MODIFIED in part.