UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 90-8327 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEFAN MARTIROSIAN,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court for the Western District of Texas
_____________________________________________________
(July 27, 1992)
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Having been convicted on a plea of guilty to possession of
cocaine with intent to distribute, Stefan Martirosian's primary
contention on appeal is that the district court's failure, in
accepting his plea, to inform him of the mandatory minimum penalty
provided by law for the offense, as mandated by Fed. R. Crim. P.
11(c)(1), constitutes a complete failure to address a Rule 11 core
concern, requiring that he be allowed to plead anew. We VACATE and
REMAND.
I.
In April 1989, Martirosian, a resident alien and Armenian
citizen of the former Soviet Union, was a passenger aboard a bus
stopped at the United States Border Patrol checkpoint at Sierra Blanca, Texas. A Border Patrol agent boarded the bus to conduct a
citizenship check. Martirosian stated that he was a resident
alien, but did not have his resident alien card with him. As
Martirosian was being removed from the bus, the agent noticed a
travel bag located above his seat. After Martirosian denied
ownership of it, the agent took it to search for citizenship
papers. The search revealed, among other things, 143 ounces of
cocaine and a Russian language newspaper.
Martirosian was charged in May 1989 in a one-count indictment
with possession of more than 500 grams of cocaine with intent to
distribute (cocaine count), in violation of 21 U.S.C. § 841(a)(1).
A superseding indictment added charges that Martirosian possessed
phenobarbital with intent to distribute, also in violation of §
841(a)(1); falsely represented himself to be a United States
citizen at the checkpoint, in violation of 18 U.S.C. § 911; and
failed to have in his possession his alien registration receipt
card, in violation of 8 U.S.C. § 1304(e).
In October 1989, Martirosian entered into a plea agreement; in
exchange for a guilty plea to the cocaine count, the others would
be dismissed after sentencing. The district court accepted the
plea at a hearing that month; set sentencing for December; and
allowed Martirosian to remain free on bond pending sentencing.
Sentencing was reset for January 1990; Martirosian failed to
appear. That March, he was arrested in Nevada.
Martirosian moved that April for permission to withdraw his
plea. A hearing was promptly held, at which Martirosian alleged,
- 2 - among other things, that he pleaded guilty based on the
representation of his attorney's paralegal that, if he did so, he
would receive probation for providing information on KGB agents to
the FBI. The motion was denied.
Martirosian was sentenced in May 1990 on the cocaine count to,
among other things, 114 months' imprisonment. His sentencing
guidelines' offense level included a two-level upward adjustment
for obstruction of justice, based on his failure to appear at the
January 1990 sentencing hearing. On motion of the government, the
other counts were dismissed.
Martirosian appealed, contending that the district court erred
in refusing to allow the plea withdrawal and in enhancing his
sentence for obstruction of justice. In response, the government
maintained that the record was inadequate to determine the district
court's reasoning for denying withdrawal and recommended that the
appeal be held in abeyance, with the case remanded for further
proceedings. This court so ordered in March 1991.
Following a two-day evidentiary hearing that July, the
district court again denied the motion to withdraw the plea and
entered detailed findings of fact and conclusions of law that
August. In October 1991, this court granted Martirosian's
unopposed motion for supplemental briefing in this appeal.1
1 Martirosian's supplemental affirmative and reply briefs were not submitted by the same counsel who filed his original briefs.
- 3 - II.
In his post-remand supplemental brief, Martirosian contends
for the first time that his guilty plea was taken in violation of
Rule 11, because the district court did not advise him of the
mandatory minimum penalty provided by law for his offense. The
government, by a supplemental brief, has responded to this new
contention.2 Because our disposition requires a remand to allow
Martirosian to plead anew, we do not reach the other issues he
raises.3
Rule 11 requires the district court, before accepting a guilty
plea, to address the defendant in open court and inform him of, and
determine that he understands, among other things
the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law ....
2 Because the government has fully responded, and does not assert waiver or prejudice, we address the merits of this claim. We do not intimate any view on whether raising an issue for the first time during appeal, after a remand while the appeal is held in abeyance, constitutes waiver where, as here, that issue could have been raised prior to remand. See generally Northwestern Indiana Telephone Co. v. F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989) (absent compelling explanation, it is generally inappropriate to consider argument raised on an appeal following remand, where it could have been properly presented on initial appeal), cert. denied, 493 U.S. 1035 (1990); Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1106 (9th Cir. 1988) (same), cert. denied, 490 U.S. 1006 (1989). Obviously, this belated assertion has resulted in a waste of scarce judicial resources in this court and the district court. 3 These include whether Martirosian (1) should have been permitted to withdraw his plea; (2) was denied effective assistance of counsel; and (3) erroneously received an upward offense level adjustment for obstruction of justice.
- 4 - Fed. R. Crim. P. 11(c)(1) (emphasis added). During the plea
hearing, the district court did not inform Martirosian of the
mandatory minimum penalty (five years) provided by law for his
offense. See 21 U.S.C. § 841(b)(1)(B). The government concedes
this, but claims harmless error pursuant to Fed. R. Crim. P. 11(h).
Rule 11 is intended to ensure that a defendant makes an
informed and voluntary plea. The rule, as interpreted by this
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 90-8327 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEFAN MARTIROSIAN,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court for the Western District of Texas
_____________________________________________________
(July 27, 1992)
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
Having been convicted on a plea of guilty to possession of
cocaine with intent to distribute, Stefan Martirosian's primary
contention on appeal is that the district court's failure, in
accepting his plea, to inform him of the mandatory minimum penalty
provided by law for the offense, as mandated by Fed. R. Crim. P.
11(c)(1), constitutes a complete failure to address a Rule 11 core
concern, requiring that he be allowed to plead anew. We VACATE and
REMAND.
I.
In April 1989, Martirosian, a resident alien and Armenian
citizen of the former Soviet Union, was a passenger aboard a bus
stopped at the United States Border Patrol checkpoint at Sierra Blanca, Texas. A Border Patrol agent boarded the bus to conduct a
citizenship check. Martirosian stated that he was a resident
alien, but did not have his resident alien card with him. As
Martirosian was being removed from the bus, the agent noticed a
travel bag located above his seat. After Martirosian denied
ownership of it, the agent took it to search for citizenship
papers. The search revealed, among other things, 143 ounces of
cocaine and a Russian language newspaper.
Martirosian was charged in May 1989 in a one-count indictment
with possession of more than 500 grams of cocaine with intent to
distribute (cocaine count), in violation of 21 U.S.C. § 841(a)(1).
A superseding indictment added charges that Martirosian possessed
phenobarbital with intent to distribute, also in violation of §
841(a)(1); falsely represented himself to be a United States
citizen at the checkpoint, in violation of 18 U.S.C. § 911; and
failed to have in his possession his alien registration receipt
card, in violation of 8 U.S.C. § 1304(e).
In October 1989, Martirosian entered into a plea agreement; in
exchange for a guilty plea to the cocaine count, the others would
be dismissed after sentencing. The district court accepted the
plea at a hearing that month; set sentencing for December; and
allowed Martirosian to remain free on bond pending sentencing.
Sentencing was reset for January 1990; Martirosian failed to
appear. That March, he was arrested in Nevada.
Martirosian moved that April for permission to withdraw his
plea. A hearing was promptly held, at which Martirosian alleged,
- 2 - among other things, that he pleaded guilty based on the
representation of his attorney's paralegal that, if he did so, he
would receive probation for providing information on KGB agents to
the FBI. The motion was denied.
Martirosian was sentenced in May 1990 on the cocaine count to,
among other things, 114 months' imprisonment. His sentencing
guidelines' offense level included a two-level upward adjustment
for obstruction of justice, based on his failure to appear at the
January 1990 sentencing hearing. On motion of the government, the
other counts were dismissed.
Martirosian appealed, contending that the district court erred
in refusing to allow the plea withdrawal and in enhancing his
sentence for obstruction of justice. In response, the government
maintained that the record was inadequate to determine the district
court's reasoning for denying withdrawal and recommended that the
appeal be held in abeyance, with the case remanded for further
proceedings. This court so ordered in March 1991.
Following a two-day evidentiary hearing that July, the
district court again denied the motion to withdraw the plea and
entered detailed findings of fact and conclusions of law that
August. In October 1991, this court granted Martirosian's
unopposed motion for supplemental briefing in this appeal.1
1 Martirosian's supplemental affirmative and reply briefs were not submitted by the same counsel who filed his original briefs.
- 3 - II.
In his post-remand supplemental brief, Martirosian contends
for the first time that his guilty plea was taken in violation of
Rule 11, because the district court did not advise him of the
mandatory minimum penalty provided by law for his offense. The
government, by a supplemental brief, has responded to this new
contention.2 Because our disposition requires a remand to allow
Martirosian to plead anew, we do not reach the other issues he
raises.3
Rule 11 requires the district court, before accepting a guilty
plea, to address the defendant in open court and inform him of, and
determine that he understands, among other things
the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law ....
2 Because the government has fully responded, and does not assert waiver or prejudice, we address the merits of this claim. We do not intimate any view on whether raising an issue for the first time during appeal, after a remand while the appeal is held in abeyance, constitutes waiver where, as here, that issue could have been raised prior to remand. See generally Northwestern Indiana Telephone Co. v. F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989) (absent compelling explanation, it is generally inappropriate to consider argument raised on an appeal following remand, where it could have been properly presented on initial appeal), cert. denied, 493 U.S. 1035 (1990); Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1106 (9th Cir. 1988) (same), cert. denied, 490 U.S. 1006 (1989). Obviously, this belated assertion has resulted in a waste of scarce judicial resources in this court and the district court. 3 These include whether Martirosian (1) should have been permitted to withdraw his plea; (2) was denied effective assistance of counsel; and (3) erroneously received an upward offense level adjustment for obstruction of justice.
- 4 - Fed. R. Crim. P. 11(c)(1) (emphasis added). During the plea
hearing, the district court did not inform Martirosian of the
mandatory minimum penalty (five years) provided by law for his
offense. See 21 U.S.C. § 841(b)(1)(B). The government concedes
this, but claims harmless error pursuant to Fed. R. Crim. P. 11(h).
Rule 11 is intended to ensure that a defendant makes an
informed and voluntary plea. The rule, as interpreted by this
court, addresses three "core concerns": "(1) whether the guilty
plea was coerced; (2) whether the defendant understands the nature
of the charges; and (3) whether the defendant understands the
consequences of the plea." United States v. Adams, 961 F.2d 505,
510 (5th Cir. 1992); see also United States v. Bachynsky, 934 F.2d
1349, 1354 (5th Cir.) (en banc), cert. denied, __ U.S. __, 112 S.
Ct. 402 (1991). A complete failure of the district court to
address any one of these concerns when accepting a plea requires
reversal; Rule 11(h)'s harmless error analysis is inapplicable.
Adams, 961 F.2d at 510-11; United States v. Pierce, 893 F.2d 669,
679 (5th Cir. 1990). A merely inadequate or "less than letter
perfect" treatment of a core concern, however, is reviewed for
harmless error. Bachynsky, 934 F.2d at 1354; see also Adams, 961
F.2d at 510-11.
The core concern in issue is whether Martirosian understood
the consequences of his plea. The district court's failure to
inform Martirosian of, and determine that he understood, the
mandatory minimum sentence "went to the heart of this requirement".
Pierce, 893 F.2d at 679. Indeed, one of Rule 11's objectives "is
- 5 - to insure that a defendant knows what minimum sentence the judge
must impose". Fed. R. Crim. P. 11 advisory committee's note (1974
amend.) (emphasis added). The failure to advise Martirosian of the
minimum mandatory sentence was a complete failure to address a Rule
11 core concern, mandating that the plea be set aside. We cannot,
as urged by the government, review this omission for harmless
error.
III.
For the foregoing reasons, Martirosian's conviction and
sentence are VACATED, and the case REMANDED to permit him to
replead.
- 6 -