United States v. Thompson , 32 F.3d 1 ( 1995 )

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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