United States v. Thompson ( 1995 )


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    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


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    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.

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    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

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    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.

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    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




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    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



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    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,


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    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


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    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.

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