U.S. v. Hekimain ( 1992 )


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  •                   UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 91-1832
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    MICHAEL A. HEKIMAIN,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    (October 9, 1992)
    Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
    DeMOSS, Circuit Judge:
    I.
    The indictment in this case charged that On December 7, 1990,
    Michael A. Hekimain was found to possess stolen mail and articles
    contained therein: namely, a credit card issued in the name of
    Homer C. Schmidt, in violation of 18 U.S.C. §1708.   The credit card
    was part of the contents of a letter addressed to Homer C. and
    Diana L. Schmidt, 6905 Colfax Drive, Dallas, Texas, which had been
    stolen from the mail by Timothy Alan Farris, a United States Postal
    Service employee. Hekimain received this card from an associate of
    his and Farris' who also received credit cards which were stolen
    from the mail by Farris.    Hekimain knew that Farris would steal
    mail, remove credit cards and then sell them.        Knowing that the
    credit card had been stolen from the mail, Hekimain used this
    credit card several times, including on December 7, 1990, at the
    Dallas Gentlemen's club in Dallas, Texas, to purchase products and
    services.   The Presentence Report (PSR) determined that the total
    loss attributable to Hekimain was $4,446.76.     In exchange for the
    government's   commitment   to    forego   further   prosecution   for
    activities which occurred or arose out of his participation in
    other crimes charged in the indictment, Hekimain agreed to plead
    guilty to the § 1708 violation.
    The district court accepted Hekimain's plea of guilty.        The
    PSR determined that the Guidelines range for imprisonment was 9 to
    15 months, followed by a supervised release range of 2 to 3 years.
    Explaining that "[t]he defendant has one of the longest criminal
    history records the court has ever seen" and "an extensive history
    of credit card abuse", the district court opted to make an upward
    departure from the Guidelines range for imprisonment and sentenced
    him to five years in prison followed by a supervised release term
    of three years.   The term of imprisonment imposed was four times
    the maximum Guidelines range and was the maximum period authorized
    for a violation of 18 U.S.C. § 1708.
    Hekimain was also ordered to pay the special assessment of
    $50.00 and restitution in the amount of $3,696.76.       The fine was
    waived because of Hekimain's inability to pay.
    2
    Hekimain filed notice of appeal on the following grounds:
    A.     The final judgment adjudging him guilty of an offense
    under 18 U.S.C. § 1708 was invalid because:
    1.      The district court failed to personally explain the
    maximum penalty to Hekimain, relying on the prosecutor to perform
    the task.
    2.     The district court failed to explain the effect of the
    three-year supervised release term during the course of the plea
    colloquy.
    3.    The district court failed to apprise Hekimain during the
    plea colloquy of its power to effect an upward departure from the
    applicable Guidelines sentencing range.
    B. The sentence imposed by the district court was unwarranted
    because:
    1.     The district court failed to provide acceptable reasons
    for effecting an upward departure from the Guidelines sentencing
    range applicable to Hekimain.
    2. The district court failed to inform Hekimain of the ground
    upon which it based its decision to make an upward departure.
    3.     The district court failed to provide reasons supporting
    the magnitude of the upward departure.
    4.    The district court's upward departure was not reasonable
    in length.
    Because we reverse the conviction based upon the court's
    noncompliance with the requirements of Federal Rule of Criminal
    3
    Procedure 11(c)(1), we do not reach the issues on sentencing set
    forth in part B above.
    II.
    Hekimain   argues that his guilty plea is invalid and his
    conviction must be reversed because the district court failed to
    comply with the requirements of Fed. R. Crim. P. 11(c)(1).   Rule 11
    reads, in pertinent part, as follows:
    (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:
    (1) 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,
    including the effect of any special parole or supervised
    release term, the fact that the court is required to
    consider any applicable sentencing guidelines but may
    depart from those guidelines under some circumstances
    . . . (emphasis added).
    This circuit has identified three "core concerns" under Rule
    11: (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. See United
    States v. Shacklett, 
    921 F.2d 580
    , 582 (5th Cir. 1991); United
    States v. Bernal, 
    861 F.2d 434
    , 436 (5th Cir. 1988).         When a
    district court completely fails to address one of these concerns,
    the defendant's substantial rights have been affected and Rule 11
    requires automatic reversal, 
    Bernal, 861 F.2d at 436
    ; United States
    v. Corbett, 
    742 F.2d 173
    , 178 (5th Cir. 1984).        If the core
    concerns are met, however, an "inadequate address" or less than
    "letter-perfect" compliance with Rule 11 may be excused under a
    4
    harmless error standard.    
    Bernal, 861 F.2d at 436
    ; see also United
    States v. Dayton, 
    604 F.2d 931
    , 939-40 (5th Cir. 1979) (en banc),
    cert. denied, 
    445 U.S. 904
    , 
    100 S. Ct. 1080
    , 
    63 L. Ed. 2d 320
    (1980).
    A. DISTRICT COURTS FAILURE TO INFORM HEKIMAIN PERSONALLY OF
    THE MAXIMUM PENALTY FOR THE OFFENSE.
    Hekimain first contends that the court failed to advise him
    personally of the statutory maximum penalty for a violation of 18
    U.S.C. § 1708.    At the plea hearing, the Assistant United States
    Attorney (AUSA) read the indictment and undertook to state the
    penalties.    The AUSA stated that a violation of 18 U.S.C. § 1708
    was punishable by a term of imprisonment not to exceed five years,
    to be followed by a term of supervised release of no more than
    three years; and that, if the term of supervised release is
    violated, the defendant can be imprisoned "for the remainder of the
    term."    Hekimain's attorney indicated in response to the court's
    questioning that he had discussed the maximum penalties involved
    with his client and that the government had correctly described the
    penalties.    The court asked Hekimain if he understood the maximum
    penalties involved and Hekimain responded affirmatively.   Hekimain
    did not have any questions about the penalties.
    Rule 11 (c) (1) states that the court must address the
    defendant personally in open court and inform the defendant of and
    determine that the defendant understands the maximum possible
    penalty, including the effect of any supervised release term.    In
    United States v. Clark, 
    574 F.2d 1357
    (5th Cir. 1978), and United
    5
    States v. Crook, 
    526 F.2d 708
    (5th Cir. 1976), both cited by
    Hekimain, the Court reversed where the prosecutor, not the judge,
    described the maximum possible penalties. However, in later cases,
    this Court has not applied Rule 11's requirement that the court
    personally address the defendant so rigidly.          E.g., United States
    v. Dayton, 
    604 F.2d 931
    at 938 (judge need not be "sole orator or
    lector," but must only involve himself personally in the inquiry);
    United States v. Sanchez, 
    650 F.2d 745
    , 748 (5th Cir. 1981)
    (prosecutor's reading of indictment and the opportunity later given
    by   the   district   court   for   the   defendant   to   ask   questions
    sufficient); Bernal, 
    861 F.2d 434
    at 437.
    Hekimain argues that the latter cases involved the district
    court's failure to inform the defendant of the nature of the
    charges, not its failure to inform of the maximum penalties.          The
    distinction, however, is not persuasive.
    We see no reason why the reasoning of the above cited cases
    should not apply to Rule 11's requirement that a defendant be
    informed of the maximum penalties for an offense as well.          
    Dayton 604 F.2d at 938
    .      In the instant case, while it was the AUSA who
    announced in court the maximum sentence which Hekimain faced upon
    his conviction for a violation of 18 U.S.C. § 1708, as well as the
    maximum term of supervised release, the maximum amount of fine, the
    amount of the mandatory assessment, and that Hekimain could be
    ordered to pay full restitution, the court then asked counsel for
    Hekimain whether he had discussed the maximum penalties with his
    client.    After receiving an affirmative answer, the court asked
    6
    Hekimain whether he understood the maximum penalties involved.
    Hekimain replied that he did.      Moreover, the court specifically
    asked Hekimain if he had any questions about the charges or the
    penalties.    We hold therefore that the prosecutor's statements,
    along with the court's follow up questions, adequately satisfied
    the requirements of Rule 11(c) that the trial court advise Hekimain
    of the maximum penalty.    
    Dayton, 604 F.2d at 938
    .
    B.   DISTRICT COURT'S FAILURE TO PROVIDE AN EXPLANATION OF THE
    EFFECT OF SUPERVISORY RELEASE.
    Hekimain next argues that Rule 11 was violated by the district
    court's failure to provide an explanation of the effect of a term
    of supervisory release, i.e., the prosecutor incorrectly stated the
    effects of supervised release in the event that Hekimain should
    violate a condition of supervised release.         The prosecutor stated
    to Hekimain during the plea colloquy that his imprisonment would be
    followed by a term of supervised release and that if the term of
    supervised release was violated, Hekimain could be imprisoned for
    the remainder of the term.   We agree that the underlined portion of
    this statement was not correct.        Hekimain could potentially be
    imprisoned again for a two year term, without credit for any time
    already served under supervised release. 18 U.S.C. § 3583(e).
    There do not appear to be any reported cases in this Circuit
    involving an incorrect explanation of the effect of violation of
    supervised release and such error's effect on the validity of a
    guilty    plea.   This   Court   has   addressed    the   total   lack   of
    explanation of the possibility and effects of supervised release in
    7
    United States v. Bachynsky, 
    934 F.2d 1349
    (5th Cir.) (en banc),
    cert. denied,           U.S.            
    112 S. Ct. 402
    , 
    116 L. Ed. 2d 351
    (1991).    The district court in that case advised the defendant of
    the statutory maximum penalty but did not advise him that the
    sentence would include a period of supervised release or explain
    its effects.     
    Id. at 1353.
           However, Bachynsky was sentenced to
    121 months imprisonment and three years supervised release; and the
    maximum penalty fixed by statute was 25 years imprisonment.                Even
    in a "worst case" scenario, the total period of time which would
    elapse from Bachynsky's first day in prison to his last would have
    been 18 years and one month.1
    This Court went on to hold in Bachynsky that because the court
    had informed the defendant of the statutory maximum and because the
    aggregate    maximum    period    of    incarceration,    under    the   actual
    sentence of imprisonment and supervised release, cannot exceed the
    statutory maximum, the failure of the court to mention supervised
    1
    Even under that "worst case" hypothesis, the total period of elapsed
    time between his first day in prison and his last would be eighteen
    years and one month--twenty-three months short of the twenty years'
    maximum for Part A of Count 1 alone , and six years and eleven
    months short of the twenty-five years' consecutive statutory
    maximum--twenty years for Part A of Count 1 plus five years for
    Count 87. That is so because, despite the theoretically possible
    extension of his supervised release term from three to five years
    pursuant to 18 U.S.C. § 3583(d)(2), in actuality Dr. Bachynsky could
    only be returned to prison for three years following revocation of
    supervised release rather than five years, because at the time of
    his sentencing, RICO was a Class B felony under 18 U.S.C. § 3559,
    and three years is the maximum period of incarceration for which a
    Class B felon may be returned to prison if his supervised release
    should ever be revoked. See 18 U.S.C.§ 3583(e)(3). For Count 87, a
    Class C felony, there is a limit of two years' additional
    incarceration following revocation of supervised release. But
    prison terms following revocation of supervised release are served
    concurrently, so three years is the maximum revocation term to which
    Dr. Bachynsky is exposed.
    Bachynsky at 1353.
    8
    release, in the absence of other omissions in the plea colloquy,
    was only a partial failure to address a core concern.   Therefore,
    the harmless error standard of review was applicable. 
    Id. at 1359-
    60.
    In United States v. Garcia-Garcia, 
    939 F.2d 230
    , 231-33 (5th
    Cir. 1991), and in United States v. Bounds, 
    943 F.2d 541
    , 545-46
    (5th Cir. 1991), this Court applied     Bachynsky's analysis and
    reversed the convictions where the district court did not mention
    the possibility or effect of a term of supervised release and the
    possible period of incarceration of the actual sentence exceeded
    the statutory maximum of which the defendant was advised.
    A recent case adds another facet to this issue.    In United
    States v. Arlen, 
    947 F.2d 139
    , 146-47 (5th Cir. 1991), cert.
    denied,       U.S.    , 
    112 S. Ct. 1480
    , 
    117 L. Ed. 2d 623
    (1992),
    the district court explained that any sentence of imprisonment
    would be followed by three years of supervised release, but did not
    advise the defendant that he would face additional imprisonment if
    he violated the terms of supervised release. The defendant claimed
    that his guilty plea was invalid because the district court failed
    to advise him fully of the effects of supervised release.     This
    Court, without citing Bachynsky or its analysis, noted that the
    district court had not totally failed to address the subject of
    supervised release and thus defendant had to demonstrate that he
    was prejudiced, i.e., that the district court's failure to explain
    the effect of supervised release caused him to plead guilty when he
    would not have otherwise done so.
    9
    On its face, Arlen appears to eliminate the condition to the
    rule adopted in Bachynsky, i.e. application of the harmless error
    standard is based on ". . . assuming the aggregate maximum period
    of incarceration under the actual sentence of imprisonment and
    supervised release cannot exceed the statutory maximum explained to
    the defendant."        The Arlen court did not analyze whether the
    aggregate time in prison which Arlen could serve, in the event
    supervised release was revoked, would be less than the statutory
    maximum.     However, Arlen is consistent with Bachynsky in fact,
    because Arlen's maximum potential period of incarceration was less
    than the statutory maximum2 and, therefore, we read Arlen as being
    consistent with the       Bachnysky condition.
    The Bachynsky condition is not met in Hekimain's case.
    As   in   Arlen,   the   court   in   Hekimain    (through    the   AUSA)
    mentioned at the plea hearing that Hekimain would be subject to a
    three year term of supervised release.            However, in Hekimain, the
    AUSA went on to explain the effects of revocation of the supervised
    release. The explanation, unfortunately, was incorrect.
    We will not attempt to analyze what the inaccurate statement
    by the AUSA may have meant to Hekimain.             Rather, we hold that in
    this case the incorrect statement by the AUSA as to the effect of
    2
    At the plea hearing Arlen was advised as to the statutory maximum
    and that there was a period of supervised release but nothing as to the effect of
    supervised release. Arlen was sentenced to twelve months of imprisonment and
    three years of supervised release on both counts to run consecutively. The
    maximum aggregate period of incarceration which Arlen faced under his sentence
    was three years, i.e. twelve months under 18 U.S.C. § 371; 21 U.S.C. §§ 331(a)
    and 333(b), and two years upon revocation of supervised release under 18 U.S.C. §
    3583(e)(3). The aggregate period of time that Arlen could have spent in prison,
    three years, was less than the five years statutory maximum.
    10
    supervised release was the same as if he had failed to mention it
    at all.
    At the plea hearing, Hekimain was clearly advised as to the
    five years of imprisonment under the statutory maximum, but because
    of the incorrect statement of the AUSA he was not correctly advised
    as to the time of imprisonment which might occur upon revocation of
    supervised release.        Hekimain was sentenced to five years of
    imprisonment and three years' of supervised release.           The maximum
    aggregate period of incarceration which Hekimain faces under this
    sentence is seven years, i.e. five years under the statutory
    maximum of 18 U.S.C. § 1708 and two years upon revocation of
    supervised release under 18 U.S.C. § 3583(e)(3).       Thus, Hekimain's
    maximum aggregate incarceration time exceeds both the statutory
    maximum and the amount of incarceration time of which he was
    correctly   advised   at   the   plea   hearing.   Likewise,    under   the
    Bachynsky "worse case" assumption that Hekimain would (1) serve
    every day of his five year prison term, (2) have his supervised
    release revoked and be returned to prison on the last day of his
    supervised release term, and (3) serve every day of his additional
    two year prison time after revocation of supervised release, the
    total period of elapsed time between the first day in prison and
    his last would be 10 years. 
    Bachynsky, 934 F.2d at 1353
    .           As each
    of these exceeds the five year maximum statutory sentence of which
    he was correctly advised, Hekimain was prejudiced by the district
    court's failure to properly describe the effect of supervised
    release.    
    Garcia-Garcia 939 F.2d at 232
    , Bounds, 
    943 F.2d 541
    .
    11
    C.       DISTRICT COURTS FAILURE TO INFORM HEKIMAIN THAT IT COULD
    UPWARDLY DEPART.
    Hekimain also contends that his guilty plea should be set
    aside because the district court failed to inform him that it could
    upwardly depart from the sentencing guidelines.
    Rule 11(c)(1) requires the district court to inform the
    defendant that it is required to consider any applicable sentencing
    guidelines but that it may depart from those guidelines under some
    circumstances.
    The transcript of the plea colloquy clearly reflects that
    Hekimain was informed that his sentence would be computed with
    reference to a Guidelines "range", and that the district court
    would select the applicable "range."                  There was, however, no
    mention by the court or, for that matter, any other participant, of
    the district court's power to effect an upward departure from the
    applicable Guidelines' range. We note also that paragraph 4 of the
    plea agreement, which is the only paragraph of the plea agreement
    dealing with sentencing,3 does not mention the power of the court
    to depart from the guidelines; and by its language clearly infers
    that the parties were thinking of a sentence within the range fixed
    by the guidelines.
    Hekimain claims that he had no idea that the district court
    could, under certain circumstances, ignore the Guidelines and
    3
    It is understood that the sentence to be imposed upon the defendant
    is within the sole discretion of the sentencing Judge, subject to
    the provisions of the Sentencing Reform Act and the sentencing
    guidelines promulgated thereunder.
    Paragraph 4 of Plea Agreement Vol 1
    12
    sentence him to a term of imprisonment that was four times the
    magnitude of the maximum Guidelines sentence. Absent prior notice,
    Hekimain claims he had no reason to expect that his guilty plea
    could result in a sentence of the severity imposed by the district
    court.
    The government counters that the plea colloquy satisfied Rule
    11 and that the district court need not use any "magic words"
    concerning upward departure.          A fair reading of the colloquy, it
    argues, is that, although defense counsel had advised Hekimain of
    his projection of the minimum and maximum guidelines ranges, the
    judge made it clear that he would make the final determination of
    the   applicable   sentencing       guidelines    range      and    what    sentence
    Hekimain would receive.      The government argues alternatively that
    any error is harmless because Hekimain was advised of the maximum
    statutory    sentence,    which     he    received.         The    court    did   not
    specifically tell Hekimain that the court could "depart" from the
    guidelines range, it argues, but the court did specifically inform
    Hekimain    that   a   guideline    range      would   be    calculated      by   the
    probation department.      Furthermore, it claims, the court informed
    Hekimain that the calculation could be higher than he thought it
    would be, that the court would make the final determination of what
    the guideline range would be, and the court would determine what
    sentence he    would     receive.        The   government     argues       that   this
    language satisfies Rule 11(c)(1).
    No Fifth Circuit case has previously addressed whether the
    colloquy regarding guidelines in this case complies with Rule 11,
    13
    and if not, what effect this has on the validity of Hekimain's
    guilty plea.            In Bachynsky, this Court noted that supervised
    release was the only error alleged by the defendant and left open
    the question of the effect other omissions in the plea colloquy
    would have on its analysis.               See 
    Bachynsky, 934 F.2d at 1360
    .
    Rule 11 clearly requires that the district court inform the
    defendant that the court is "obligated to consider any applicable
    sentencing Guidelines but may depart from the Guidelines under
    specified circumstances" (emphasis added) as one component of the
    "maximum penalty element" of a "core interest" protected by the
    colloquy mandated by Rule 11. In Bachynsky, 
    934 F.2d 1349
    at 1356
    this court recognized that the defendant must understand the
    consequences of his guilty plea as the "core interest" protected
    by, inter alia, the mandatory explanation of the district court's
    power to effect an upward departure.
    From our review of the transcript of the plea hearing, it is
    clear that the district court did not advise Hekimain that the
    district court could, under certain circumstances, sentence him to
    a term of imprisonment that exceeded the maximum Guidelines range.4
    4
    The Court:   Have you discussed with your client guideline sentencing?
    Mr. Mills:    We have, sir.
    The Court:    And you've made a calculation.
    Mr. Mills:    We have basically a low range and a high range, Your Honor.
    The Court:       Okay.   Could you just give me those so I can use those as an
    example.
    Mr. Mills:    The low range we calculated would be zero to six months, Your
    Honor.
    The Court:    And the high range?
    Mr. Mills:    The high range would be fifteen to twenty-one months.
    a:jm1:91-1832:opn:
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    14
    We hold that such failure is another partial failure to
    address        the   core   concern    of     making   sure   that   a   defendant
    understands the consequences of his plea.               By itself, this failure
    The Court: Okay. Mr. Mills -- I'm sorry. Mr. Mills, has your client
    understood what you've told him about the guideline ranges that you've just given
    me?
    Mr. Mills:   Yes, sir, I believe he has.
    The Court: And does he understand that you have no way of knowing whether
    that will be the guideline range calculated by the Probation Department and
    accepted by me?
    Mr. Mills:   Yes, sir.
    The Court: Now, do you generally understand what your lawyers have told
    about guideline sentencing?
    The Defendant Hekimain:   Yes, sir, I do.
    The Court: You heard Mr. Mills tell me that one calculation that he's made
    on your behalf would show zero to six months and a higher one would show fifteen
    to twenty-one months?
    The Defendant Hekimain:   Yes, sir.
    The Court: Do you understand again there's no way for him to know or me to
    know right now that either one of the calculations is correct?
    The Defendant Hekimain:   Yes, sir.
    The Court: You do understand that our Probation Department will do a
    calculation for me?
    The Defendant Hekimain:   Yes, sir.
    The Court: Do you understand that if that calculation turns out to be
    higher than you may think, or Mr. Mills may think, you would not have a right to
    withdraw your plea of guilty?
    The Defendant Hekimain:   Correct, sir.
    The Court: You do understand that if your attorneys thought the
    calculation was wrong they could make objections to me and say it's wrong?
    The Defendant Hekimain:   Yes, Your Honor.
    The Court: Okay. You understand I am the one who would rule on any
    objections as to whether the calculation of the guideline was correct or not?
    The Defendant Hekimain:   Yes, sir.
    The Court: So you understand that I am the one who would make the final
    determination of what your guideline ranges will be and what sentence you will
    receive?
    The Defendant Hekimain:   Yes, sir.
    TR. Vol 2 - p. 9, line 11 to p. 11, line 13
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    15
    might not necessitate vacation of the sentence; but when it occurs,
    as in this case, with another partial failure in the same core
    concern, and the Bachynsky condition for application of harmless
    error analysis is not met, we have no hesitancy in holding that
    such error is not harmless and affects the Defendant's substantial
    rights.
    Hekimain's plea was thus not voluntary, and the strictures of
    the due process clause as to this point were not satisfied.   United
    States v. Pearson, 
    910 F.2d 221
    (5th Cir. 1990) cert denied
    U.S.           , 
    111 S. Ct. 977
    , 
    112 L. Ed. 2d 1062
    (1991).
    IV. CONCLUSION
    For the foregoing reasons we hold (1) that the district court
    did not err in connection with Rule 11(c)(1)'s requirement that it
    inform the defendant personally of the maximum penalty; but (2)
    that the partial failures to comply with the requirements of
    Federal Rule of Criminal Procedure 11 (c)(1) were not harmless in
    this case; and accordingly, we REVERSE the conviction, VACATE the
    sentence, and REMAND their case to the district court to permit
    defendant to plead anew.
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