United States v. Hernandez-Fraire , 208 F.3d 945 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 06 2000
THOMAS K. KAHN
CLERK
No. 98-3192
D. C. Docket No. 98-00042-CR-ORL-18A
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO HERNANDEZ-FRAIRE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(April 6, 2000)
Before DUBINA and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.
DUBINA, Circuit Judge:
Appellant Jose A. Hernandez-Fraire (“Hernandez-Fraire”) appeals his
judgment of conviction entered following his guilty plea to one count of being
unlawfully in the United States after having been previously deported, in violation
of 8 U.S.C. § 1326. Hernandez-Fraire contends that his plea was not made
knowingly and intelligently because the district court failed to inform him of his
right to plead not guilty, his right to the assistance of counsel at trial, his right to
confront and cross-examine adverse witnesses at trial, and his right against
compelled self-incrimination. After reviewing the record, reading the parties’
briefs, and having the benefit of oral argument, we conclude that the district court
committed plain error when it failed to inform Hernandez-Fraire of the
aforementioned rights as required by Federal Rule of Criminal Procedure 11(c)(3)
(“Rule 11”). Accordingly, we vacate Hernandez-Fraire’s sentence and remand this
case to the district court for further proceedings consistent with this opinion.
I. Background
The United States deported Hernandez-Fraire on October 8, 1996, following
his conviction for burglary. Subsequently, Hernandez-Fraire returned to the
United States, and federal authorities arrested him for illegal re-entry into the
United States, in violation of 8 U.S.C. § 1326.
2
On April 28, 1998, Hernandez-Fraire pled guilty to illegal re-entry into the
United States. As required by Rule 11, the district court addressed Hernandez-
Fraire in open court. The following colloquy took place:
THE COURT: All right sir. You are charged in count one of
the indictment that on or about the 15th of
December, 1997, in Osceola County that you
had previously been arrested and deported
from the United States without obtaining
consent from the Attorney General. Do you
understand what you’re being charged with?
THE DEFENDANT: Yes.
THE COURT: And has your attorney explained to you to
your satisfaction every element of the offense
charged in the indictment?
THE DEFENDANT: Yes.
THE COURT: And where were you deported to in 1996?
MS. MILLS:1 To Mexico, Your Honor.
THE COURT: And that is where you are a permanent
resident, Mexico?
THE DEFENDANT: Well, I came here when I was 14 years old
and I don’t know nobody in Mexico City. I
don’t have no family in Mexico City. All my
family is in California.
THE COURT: Do you have any American residency such as
a green card or passport or anything like that?
THE DEFENDANT: All my family does.
THE COURT: You. Do you?
THE DEFENDANT: No. I applied for one for the amnesty and
they say that Washington was going to make
their decision, something that happened about
my papers, they say that I didn’t send them to
them.
1
Ms. Mills was Hernandez-Fraire’s trial counsel.
3
THE COURT: All right. Do you understand that by entering
a plea of guilty to this count that you’re giving
up your right to a jury trial?
THE DEFENDANT: I understand that.
THE COURT: Now, under the statute, under the statute,
which is 8 United States Code § 1326, you
could get up to 20 years imprisonment, a fine
of $25,000, supervised release term of up to
three years and a special assessment of $100.
Has your attorney explained to you the federal
guidelines for sentencing?
THE DEFENDANT: Yes.
THE COURT: Under the guidelines you could have an
estimated offense level of 24. What would be
the criminal history category?
MR. WHERRY:2 Criminal history category we would say three,
five points for criminal history points, is that
what you’re speaking of, Judge?
THE COURT: Yes.
MR. WHERRY: Offense level would be 11.
THE COURT: No. I just want to know what his criminal
history category would be?
MR. WHERRY: I estimate it to be a three.
MS. MILLS: Your Honor, three to four.
THE COURT: All right. Three. All right, sir. You would
have an estimated offense level of 24 with a
criminal history category of from three to four
which would give you an exposure of from 63
to 96 months in prison, but by entering this
plea of guilty and taking responsibility for
your actions, you would be entitled to a three
level reduction which would give you an
exposure of from 46 to 71 months, do you
understand that?
THE DEFENDANT: Yes.
2
Mr. Wherry was the trial prosecutor.
4
THE COURT: Has anybody threatened you in any way to get
you to enter into this plea?
THE DEFENDANT: I really don’t know about this plea because I
don’t know what my rights are.
MS. MILLS: Well, your Honor, I think I can speak for Mr.
Fraire. He is entering a plea of guilty because
he came into the country, he knows what the
elements of the offense are, that he had been
deported. I think that Mr. Fraire has some
questions about an appeal that he had filed
that he dismissed that he never got to appeal
and I explained that to him and he understands
that he was legally deported from the country
and came back without permission and that’s
what he’s pleading today. And I know he has
some confusion about the other conviction
that he had.
THE COURT: Did anybody make any promises to you
regarding the sentence in this case?
THE DEFENDANT: No.
THE COURT: Has anybody made any threats to you?
THE DEFENDANT: No.
THE COURT: During the time that you have been detained,
have you been under any doctor’s care or
taken any prescriptions that you think might
affect your ability to understand what is
happening here this morning?
THE DEFENDANT: No.
THE COURT: Are you entering a plea of guilty to entering
the United States illegally after having been
deported because you are guilty or for some
other reason?
THE DEFENDANT: I didn’t understand the question.
THE COURT: All right. You are charged with entering the
United States illegally after having been
deported. Are you entering that plea because
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you are guilty or are you entering the plea for
some other reason?
THE DEFENDANT: Well, I just, I have to eat, you know, and I
didn’t, I’m homeless in Mexico and -
(DISCUSSION OFF THE RECORD).
THE DEFENDANT. According to the papers, that’s what they say.
THE COURT: All right. Would you tell me exactly what
you did? You had been previously arrested
and deported in October of ‘96. What did you
do after that?
THE DEFENDANT: After being deported?
THE COURT: Yes.
THE DEFENDANT: I came back.
THE COURT: How did you come back?
THE DEFENDANT: Just come back inside the country.
THE COURT: Did you go through customs?
THE DEFENDANT: No.
THE COURT: Did you cross the border illegally?
THE DEFENDANT: Yes.
THE COURT: All right. Miss Mills, anything you’d like to
add?
MS. MILLS: No, Your Honor.
THE COURT: Mr. Wherry.
MR. WHERRY: Do you want a statement from the government
at this time?
THE COURT: Yes. Because there’s no agreement, would
you please state what the government could
prove it if went to trial?
MR. WHERRY: Yes, sir. If the government were to go to trial
in this particular matter, we would develop the
criminal history of this individual of having
been deported from the United States on
October 8, 1996 following his conviction for
burglary of a dwelling in Brevard county on
3-25-95 and having been sentenced there for
30 months. Following his deportation on
October 8, 1996 in Miami, Florida, he was
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sent back to Mexico. At the time of
deportation, his fingerprint was taken and he
was explained that if he came back into the
United States he would first have to have
permission of the Attorney General, otherwise
he’d be in violation of the law.
The record of Immigration and Naturalization
Service would indicate that there was never an
application filed by the defendant for reentry
in the United States and the individual’s
identity was identified by Immigration and
Naturalization Service by a fingerprint
identification, his criminal history record as
well as his prior deportation record [show]
that this individual is the same individual
before the court today and that he reentered
the United States illegally and he’s an illegal
alien in the United States subject to
deportation.
THE COURT: Would you feel it’s just easier to be a criminal
in this country rather than being a criminal in
Mexico?
***
THE COURT: All right, sir. The court will accept your plea
of guilty to illegally entering the United States
after being deported. I’ll order a presentence
report and set sentencing for August 19 at
nine o’clock.
MS. MILLS: Thank you, Your Honor.
(R2-3-11)
In this colloquy, the district court did not explicitly inform Hernandez-Fraire
of his right to plead not guilty, his right to the assistance of counsel at trial, his
7
right to confront and cross-examine adverse witnesses at trial, and his right against
compelled self-incrimination. The district court sentenced Hernandez-Fraire to 87
months imprisonment, to be followed by a three-year term of supervised release.
Hernandez-Fraire then perfected this appeal.
II. Standard of Review
Because Hernandez-Fraire did not present the Rule 11 violations to the
district court, this court will review the district court’s holding for plain error. See
United States v. Wiggins, 131 F.3d 1440, 1441-42 (11th Cir. 1997); United States
v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). Plain error is error that is clear or
obvious and affects substantial rights. See Wiggins, 131 F.3d at 1442 n.1;
Quinones, 97 F.3d at 475. On plain error review, the defendant bears the burden of
persuasion with respect to prejudice. See Wiggins, 131 F.3d at 1442 n.1;
Quinones, 97 F.3d at 475. A district court’s failure to address a core concern of
Rule 11 constitutes plain error. See Quiones, 97 F.3d at 475.
III. Discussion
Rule 11 imposes upon a district court the obligation and responsibility to
conduct an inquiry into whether the defendant makes a knowing and voluntary
guilty plea. See Wiggins, 131 F.3d at 1442. When accepting a guilty plea, a court
must address three core concerns underlying Rule 11: “(1) the guilty plea must be
8
free from coercion; (2) the defendant must understand the nature of the charges;
and (3) the defendant must know and understand the consequences of his guilty
plea.” United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998) (quoting
United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996)). “A court’s failure to
address any one of these three core concerns requires automatic reversal.” Siegel,
102 F.3d at 481 (quoting United States v. Bell, 776 F.2d 965, 968 (11th Cir.
1985)). Rule 11, however, does not say that a court’s only means of compliance is
to read the specified items in haec verba. See Fed. R. Crim P. 11(h), Advisory
Committee’s Notes. Instead, any variances or deviations from the procedures
mandated by Rule 11 that do not affect a defendant’s substantial rights constitute
harmless error. See Fed R. Crim. P. 11(h) (“any variance from the procedures
required by this rule which does not affect substantial rights shall be disregarded”);
Siegel 102 F.3d at 481. Generally, this circuit will uphold a plea colloquy that
technically violates Rule 11, but adequately addresses the three core concerns. See
Jones, 143 F.3d at 1420 (“A defendant ‘is entitled to replead only if the district
court’s variance from the formal requirements of Rule 11 impinged upon the very
rights they were designed to protect.’”) (quoting United States v. Zickert, 955 F.2d
665, 667-68 (11th Cir. 1992)).
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In this appeal, Hernandez-Fraire contends that by failing to mention all of
the rights listed in Rule 11(c)(3), the district court did not address the third core
concern of Rule 11 – that the defendant must know and understand the
consequences of his guilty plea. Rule 11(c) provides:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo
contendere, the court must address the defendant personally in open
court and inform the defendant of, and determine that the defendant
understands, the following:
***
(3) that the defendant has the right to plead not guilty or to persist
in that plea if it has already been made, the right to be tried by a
jury and at that trial the right to the assistance of counsel, the right
to confront and cross-examine adverse witnesses, and the right
against compelled self-incrimination . . .
In the present case, the district court violated Rule 11(c)(3) by not explicitly
informing Hernandez-Fraire of his right to plead not guilty, his right to the
assistance of counsel at trial, his right to confront and cross-examine adverse
witnesses at trial, and his right against compelled self-incrimination.
The government acknowledges that the district court failed to ask all the
questions contemplated by Rule 11(c)(3), but argues that the district court
nonetheless addressed the core concerns underlying Rule 11. In particular, the
government notes that the district court informed Hernandez-Fraire of the possible
penalties he would face, and that, by pleading guilty, he waived his right to a jury
trial. The government asserts that the additional rights the district court omitted –
10
the right to the assistance of counsel, the right to confront and cross-examine
witnesses, and the right against compelled self-incrimination – are all inherent in
the right to a jury trial. Moreover, the government posits that Hernandez-Fraire’s
extensive criminal history has familiarized him with the criminal justice system
and the rights inherent in the right to a jury trial. See United States v. Mosley, 173
F.3d 1318, 1322 (11th Cir. 1999) (examining a defendant’s life experiences in
determining whether the defendant understood the nature of the charges).
As the government concedes in its brief, however, this court has rejected
these arguments in two other factually similar cases. See United States v. Ortiz,
No. 98-3698 (11th Cir. Nov. 23, 1999) (unpublished); United States v. Leija-
Vasquez, No. 99-2367 (11th Cir. Aug. 13, 1999) (unpublished).3 Although these
cases are not binding on this court, they are persuasive authority.4 Both Ortiz and
Leija-Vasquez involve appeals from similar plea colloquies before the same district
judge5 who presided in the present case. In Ortiz and Leija-Vasquez, as in this
case, the court advised the defendant of his right to a jury trial, but failed to
3
We appreciate the candor of the government in calling to our attention the unpublished
opinions in Ortiz and Leija-Vasquez.
4
Eleventh Circuit Rule 36-2 states that “[u]npublished opinions are not considered
binding precedent. They may be cited as persuasive authority . . . .”
5
The government points out that the plea colloquy used in this instant case and in Ortiz
and Leija-Vasquez appears to be the standard plea colloquy used by this district judge.
11
mention that at trial the defendant has the right to the assistance of counsel, the
right to confront and cross-examine adverse witnesses, and the right against
compelled self-incrimination. Furthermore, as in Ortiz and Leija-Vasquez, nothing
in the record in this case indicates that the defendant knew he had these additional
rights. Cf. United States v. Caston, 615 F.2d 1111, 1113-16 (5th Cir. 1980)
(upholding a guilty plea, even though the district court did not explicitly mention
that the defendant had the right to a jury, the right to the assistance of counsel at
trial, and the right against compelled self-incrimination, because the record
indicated that the defendant understood the consequences of his guilty plea
including his waiver of certain constitutional rights).
As in Ortiz and Leija-Vasquez, we hold that where the district court fails to
inform the defendant of his Rule 11(c)(3) rights and nothing in the record indicates
that the defendant is aware of these rights, the government cannot rely on the
defendant’s past criminal background to prove that he knows and understands
these rights. We will not infer to a defendant knowledge of his Rule 11
constitutional rights based solely on his past criminal history. To do so would
eviscerate the third core concern of Rule 11. See Jones, 143 F.3d at 1419 (“If . . .
an appellate court cannot be sure that the defendant was aware of any information
12
required by Rule 11 to be discussed at the plea colloquy, the defendant should be
permitted to withdraw his plea.”).
In fact, an examination of the plea colloquy in this case reveals that
Hernandez-Fraire did not understand his rights. Specifically, the court asked the
question: “Has anybody threatened you in any way to get you to enter into this
plea?” Hernandez-Fraire answered: “I really don’t know about this plea, because I
don’t know what my rights are.” (R2-6) (emphasis added). After this response, the
district court should have ensured Hernandez-Fraire was aware of his rights.
In sum, we conclude that Hernandez-Fraire did not know and understand the
consequences of his guilty plea. The district court failed to determine that
Hernandez-Fraire understood that by entering a plea of guilty, he waived his right
to the assistance of counsel at trial, the right to confront and cross-examine adverse
witnesses at trial, and the right against self-incrimination as required by Rule
11(c)(3). The district court also failed to inform Hernandez-Fraire that he had the
right to persist in a plea of not guilty as required by Rule 11(c)(3). Nothing in the
record indicates that Hernandez-Fraire understood these rights. The district court’s
failures to inform strike at the heart of what Rule 11 was designed to prevent – the
unknowing and unintelligent waiver of constitutional rights. Therefore, we hold
13
that the district court committed plain error by failing to address a core concern of
Rule 11.
IV. Conclusion
For the sake of judicial economy and fundamental fairness, the best way for
district courts to address the core concerns underlying Rule 11 is to explicitly
follow Rule 11. While this procedure is wise but not mandatory, we hold in this
case that the district court committed plain error in failing to inform Hernandez-
Fraire of his rights as required by Rule 11(c)(3). Therefore, we vacate Hernandez-
Fraire’s sentence and remand this case with instructions that the district court
permit Hernandez-Fraire to withdraw his guilty plea.
VACATED AND REMANDED.
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