United States v. Castro-Gomez ( 2000 )

United States Court of Appeals
For the First Circuit
No. 99-1491
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
CÉSAR R. CASTRO-GÓMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lipez, Circuit Judges.
Lydia Lizarribar-Masini, was on brief, for appellant.
Camille Vélez-Rivé, Assistant U.S. Attorney, with whom Guillermo
A. Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S.
Attorney, were on brief, for appellee.
December 7, 2000
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TORRUELLA, Chief Judge. Appellant César R. Castro-Gómez
appeals the denial by the district court of his motion to withdraw his
guilty plea. Castro-Gómez allegedly was unaware that the only possible
sentence for a person with his criminal history under the "three
strikes" statute, 18 U.S.C. § 3559(c)(1)(A), was life imprisonment.
Because the district court did not inform appellant, as required by
Federal Rule of Criminal Procedure 11(c)(1), that he faced a minimum
mandatory life sentence, we reverse.
BACKGROUND
On November 12, 1997, a grand jury returned an indictment
against César R. Castro-Gómez charging him with: (1) conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846 and 18 U.S.C. § 2; (2) attempt to import and possess with intent
to distribute cocaine on board a vessel, in violation of 46A U.S.C.
§ 1903(a) and (b)(1) and 18 U.S.C. § 2; and (3) aiding and abetting
unlawful importation of cocaine into the United States, in violation of
21 U.S.C. § 963 and 18 U.S.C. § 2. In the months leading up to trial,
appellant's counsel engaged in plea negotiations with the government
resulting in a motion for a change of plea from not guilty to guilty.
Shortly thereafter, the United States Attorney's office determined that
it would not offer appellant a deal and filed an Information stating
that based on appellant's prior criminal history, it would seek life
imprisonment.
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On March 25, 1998, appellant's change of plea hearing was
held before the district court. Appellant entered a straight plea of
guilty for the three counts with which he was charged. The district
court explained to appellant that each count had a minimum sentence of
ten years imprisonment and a maximum of life imprisonment. Appellant
was told that the sentences could be imposed to run concurrently or
consecutively and was given examples of possible scenarios. Appellant
stated that no promises or predictions had been made to him regarding
what sentence he was likely to receive. No mention of the government's
Information was made at appellant's change of plea hearing.
Appellant's sentencing hearing was held on August 17, 1998.
The government moved for the district court to take into account the
Information regarding appellant's prior convictions, which would
mandate a sentence of life imprisonment. Appellant's counsel responded
by objecting and stating that she did not know of the filing of the
Information until she received the pre-sentence report. In addition,
she stated that had she known that the government was going to file an
Information, appellant would not have pled guilty. Appellant's counsel
reasoned that if faced with mandatory life imprisonment, appellant had
nothing to lose by going to trial. The government countered that
appellant's counsel had been alerted to the filing of the Information,
as evidenced by the certificate of service. The sentencing hearing was
continued with instructions to the parties to clarify their positions.
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The government filed two unsworn statements indicating that
appellant's counsel had been notified of the impending filing of the
Information. On November 3, 1998, appellant filed a motion to withdraw
his guilty plea on the grounds that he did not make an intelligent or
knowing plea. This was denied by the district court in its Opinion and
Order of February 4, 1999 for the reasons that: (1) appellant's counsel
probably had received notice of the Information, or, at minimum,
certainly knew about appellant's prior criminal convictions and should
have expected that the government would file such Information; and (2)
appellant was informed of the possibility of a life sentence and had no
expectation of any particular sentence. Appellant's Motion for
Reconsideration was similarly denied on February 24, 1999, and
appellant was sentenced to life imprisonment, as required by statute,
on March 12, 1999.
DISCUSSION
The standard of review for denial of a motion to withdraw a
guilty plea is abuse of discretion. United States v. Ribas-Dominicci,
50 F.3d 76, 78 (1st Cir. 1995). Appellant was not per se entitled to
withdraw his guilty plea prior to sentencing. United States v.
Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997). Instead, motions to
withdraw a guilty plea prior to sentencing may be allowed upon a
showing of "any fair and just reason," Fed. R. Crim. P. 32(e), with the
burden of persuasion falling upon the defendant, Marrero-Rivera, 124
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F.3d at 347. In making this determination, the district court was
required to evaluate whether the guilty plea was voluntary,
intelligent, and knowing within the framework of Federal Rule of
Criminal Procedure 11. Id.
Rule 11(c) of the Federal Rules of Criminal Procedure governs
a court's conduct when a defendant pleads guilty or nolo contendere.
Specifically, the court must communicate to the defendant personally:
"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." Fed. R. Crim. P. 11(c)(1). This Court has
identified three "core" concerns of Rule 11(c). They are: (1) that the
plea is voluntary; (2) that the defendant understands the charge to
which he has pled guilty; and (3) that the defendant knows the
consequences of his guilty plea. Marrero-Rivera, 124 F.3d at 348 n.7.
The complete failure of the district court to address one or more of
these three concerns would warrant reversal. Id. at 348. Absent total
failure, any variance from the procedures required by Rule 11 that does
not "affect substantial rights" is harmless error. Fed. R. Crim. P.
11(h); Marrero-Rivera, 124 F.3d at 348. We look at all of the
circumstances of the Rule 11 hearing to determine what appellant
reasonably should have understood. Id.
In this appeal, only the third concern, appellant's knowledge
of the consequences of his guilty plea, is relevant. At his change of
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plea hearing, Castro-Gómez was informed by the district court that,
based on the offenses to which he intended to plead guilty, he faced a
minimum of ten years imprisonment and a maximum of life imprisonment.
According to the Information filed by the government, however,
appellant's prior criminal history mandated a life sentence. The ten-
year minimums set out in the statutes that appellant was charged with
violating were not applicable. It follows that he was not accurately
apprised of the minimum mandatory sentence that would be imposed, as
required by Rule 11(c)(1).
A failure to inform a defendant of a mandatory minimum
sentence at his plea hearing "implicates a core concern of Rule 11."
United States v. McDonald, 121 F.3d 7, 10-11 (1st Cir. 1997). Before
forfeiting the right to trial by a plea of guilty, appellant was
entitled to have the consequences of that forfeiture accurately
explained. Informing appellant of the mandatory minimums for the
offenses to which he pled guilty, rather than the mandatory life
imprisonment imposed by the "three strikes" provision, 18 U.S.C.
§ 3559(c)(1)(A), was not sufficient: "advice as to a mandatory minimum
that is no longer relevant can hardly achieve Rule 11's purpose, which
is to advise a defendant of the actual consequences of his plea so that
he can realistically decide whether to plead guilty." United States v.
Santo, 225 F.3d 92, 98 (1st Cir. 2000). The district court's failure
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to communicate the minimum mandatory life sentence to appellant
rendered the Rule 11 colloquy imperfect.
Our inquiry does not end here, because the district court did
not completely fail to inform appellant of the consequences of his
plea. The error, then, must now be analyzed for its effect on
appellant's substantial rights. If the error is harmless, Rule 11(h)
instructs us to uphold appellant's guilty plea. The district court
denied Castro-Gómez's motion to withdraw his plea in part because
appellant was fully aware that he could receive a life sentence.
Appellant was told at his change of plea hearing that he could receive
ten years to life for each of the offenses to which he intended to
plead guilty. He admits that no assurances were given to him that he
would receive a sentence closer to the alleged ten-year minimum rather
than the life maximum. The imposition of the life sentence, then, did
not come without warning.
Even a mere possibility that Castro-Gómez could receive less
than a life sentence, however, likely played an important role in his
decision to plead guilty. See Santo, 225 F.3d at 100 ("[I]t is
sufficiently likely that [appellant] misjudged the consequences of his
plea in light of the court's misinformation so that he must be allowed
to withdraw his plea."). There are few instances that one could
imagine in which an accused individual would concede the right to trial
and the chance of acquittal, however slim, and submit to a guaranteed
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life sentence. We cannot say that appellant would have made a
different choice had he known at the outset that he faced mandatory
life, but certainty is unnecessary in this regard. It is enough that
we find that this information could reasonably have affected his
decision to plead guilty. Santo, 225 F.3d at 101.
Appellant's situation is distinguishable from those found in
cases in which we have found harmless error. In McDonald, the
defendant was sentenced to more time than the mandatory minimum
prescribed. 121 F.3d at 11 (sentenced to fifteen months more than the
ten-year minimum). We held that defendant's substantial rights were
not affected because the mandatory minimum had no actual impact on the
sentence that he received. Id. Appellant's sentence, in contrast, was
wholly dictated by the mandatory minimum, as no other sentence was
possible under the "three strikes" statute.
Finally, whether or not appellant's counsel knew of the
government's filing of the Information or should have known, based on
appellant's prior record, that the government was likely to file such
Information is irrelevant. Rule 11 requires that a defendant be
"personally" informed by the district court of the mandatory minimum
penalties that he faces. See McCarthy v. United States, 394 U.S. 459,
465-66 (1969); United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir.
1994). A possible awareness by appellant's counsel of minimum and
maximum penalties did not absolve the district court of its
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responsibility to conduct a direct and complete Rule 11 interrogation
of the appellant. Cf. United States v. Gray, 63 F.3d 57, 61 (1st Cir.
1995) (rejecting government argument that defendant knew of the
applicable minimum penalty because the information had been contained
in the plea agreement that defendant signed; this did not absolve
district court of the duty to address the defendant personally in the
Rule 11 colloquy).
Accordingly, the district court's denial of appellant's
motion to withdraw his plea is reversed.
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