United States v. William C. Smith , 440 F.2d 521 ( 1971 )

HASTINGS, Senior Circuit Judge.

The only issue raised by these appeals is whether a person who pleads guilty to a charge of a federal narcotics law violation, without knowledge that he will be ineligible for parole from the sentence he receives, enters his guilty plea voluntarily with an understanding of the consequences of such plea.

Defendant William C. Smith was charged in two two-count indictments with violations of the narcotics laws.¹ Desiring to change his plea to Count II of each indictment² from not guilty to guilty, defendant was brought before the district court on February 3, 1969. The court questioned Smith to insure that he knew the effects of his plea and that he entered the plea voluntarily without any promises or threats. Smith was informed that he could receive a maximum fine of $20,000 on each count and maximum imprisonment of forty years. The court did not advise Smith that Title 26, U.S. C.A. § 7237(d) ³ would render him ineligible for parole.⁴

The district court accepted Smith’s guilty pleas and sentenced him to nineteen years’ imprisonment on each count to run concurrently and also concurrent with an existing state-court sentence of twenty to forty years previously imposed for illegal possession of narcotics.

On April 1, 1970, pursuant to Title 28, U.S.C.A. § 2255, defendant filed motions to vacate the judgments of conviction and sentence imposed February 3, 1969. The sole basis for such motions was that the district court failed to advise defendant, as required by Rule 11, Federal Rules of Criminal Procedure, Title 18, U.S.C.A., that as a consequence of his pleas, he would be ineligible for parole.⁵ Both motions were denied without an evidentiary hearing and these appeals followed. We reverse.

Rule 11, supra, as amended effective July 1, 1966, provides that the court shall not accept a guilty plea “without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” The question before us is whether ineligibility for parole is a “consequence” of a guilty plea about which a district court must address the defendant before accepting such plea.

Although several circuits have considered this question, we have not yet determined this precise issue. The Government relies heavily on a case cited by the district court in support of its decision, Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964).⁶ Smith arose from the fourth in a series of § 2255 motions, the effect of which would permit the withdrawal of defendant’s plea of guilty to charges of violations of the narcotics laws. Defendant had been sentenced to eight years’ imprisonment following his guilty plea, although he could have been sentenced to a maximum of forty years.⁷ The basis asserted in his motion was that he was not told by the court, the clerk, court-appointed counsel or anyone else that he would not be eligible for probation or parole if a plea of guilty were entered. On brief, defendant attacked his court-appointed counsel for misleading him by representing that he could receive probation and by the failure to inform him of his ineligibility for parole. In the overall context of an allegation of ineffective assistance of counsel, the court considered the question of whether or not ineligibility for parole is a consequence of a plea of guilty. It characterized parole as a matter of legislative grace and held that noneligibility for parole is a consequence of the withholding of legislative grace, rather than a consequence of a plea of guilty.

In Munich v. United States, 9 Cir., 337 F.2d 356 (1964), a § 2255 proceeding, the court without citation of authority or supporting reasoning decided that if one is not aware of his ineligibility for parole or probation, he does not plead guilty with an understanding of the consequences of such plea.

The Fifth Circuit first considered this issue in Trujillo v. United States, 5 Cir., 377 F.2d 266 (1967). Trujillo and co-defendant Perez pleaded guilty to two counts of a three-count narcotics indictment. At the sentencing proceeding a week later, the district court, in the presence of Trujillo, advised Perez that he would not be eligible for parole. In affirming the district court’s denial of the § 2255 motion to vacate the two concurrent ten-year sentences, the court accepted the rationale of Smith, supra, and analogized parole ineligibility to such collateral consequences of a guilty plea as loss of passport, deportation, loss of voting privileges and an undesirable discharge from the armed services. Trujillo, supra at 268-269.

In Durant v. United States, 1 Cir., 410 F.2d 689 (1969), the First Circuit rejected the rationale of Smith and Trujillo. In a § 2255 motion to vacate sentence or in the alternative to withdraw his guilty pleas to narcotics charges, Durant alleged that when he pleaded guilty he did not know he would be ineligible for parole; that he was advised by his attorney that parole would be available; and that had he known that parole was unavailable, he would not have pleaded guilty.⁸ The court rejected the argument advanced in Smith and Trujillo that parole is merely a matter of legislative grace which may be administratively granted or withheld and therefore not within the ambit of Rule 11, since such argument failed to distinguish between availability of parole and eligibility for parole. The Congressional removal of all hope for parole was characterized as in the nature of an additional penalty. The court further pointed out that the collateral consequences referred to by the Fifth Circuit in Trujillo were all civil in nature, while parole goes directly to the length of time a defendant is to be incarcerated. It then held that ineligibility for parole is a consequence of a guilty plea and a defendant should be advised of such ineligibility prior to the district court’s acceptance of a plea of guilty pursuant to Rule 11.

Likewise in Berry v. United States, 3 Cir., 412 F.2d 189 (1969), the court in reversing and remanding with directions⁹ the district court’s denial of a § 2255 motion to vacate, held that one who is not aware of the fact that he would not be eligible for parole, at the time of entering a guilty plea, does not plead with an understanding of the consequences of such plea. The court reasoned that parole is a concept which our society accepts as a natural incident of rehabilitation during imprisonment. It concluded, therefore, that the effect of ineligibility for parole is an inseparable ingredient of the punishment imposed and such ineligibility translates the term of actual imprisonment into a period three times as long as that ordinarily expected.

The Fifth Circuit was again confronted with the problem in Sanchez v. United States, 5 Cir., 417 F.2d 494 (1969). The court felt compelled to follow its previous decision in Trujillo, supra, although it appeared quite reluctant to do so. The court stated at 496-497, “Were the question of parole ineligibility before this Court for the first time, the considerable appeal of these recent decisions \_Durant and Berry] might persuade us to a like position. * * * This panel being impotent to overrule Trujillo we abide and apply its edict.”

In Jenkins v. United States, 10 Cir., 420 F.2d 433 (1970), defendant alleged in his § 2255 motion that he was unaware of his ineligibility for probation or parole following his plea of guilty. The district court, relying on the reasoning in Smith, supra, denied the motion without an evidentiary hearing. The Tenth Circuit accepted the rationale of Berry, supra, and reversed, holding that loss of probation and parole is a consequence of defendant’s guilty plea within the meaning of Rule 11.

The latest consideration given by the Fifth Circuit to the proposition in issue occurred in Spradley v. United States, 5 Cir., 421 F.2d 1043 (1970). The district court had accepted defendant’s guilty plea at the sentencing hearing, two and one-half weeks after it was entered. At such hearing the court advised the defendant of the mandatory five-year minimum sentence. It then went on to say:

“ ‘And that would mean that after you have served one-third of the sentence if you behave yourself and I don’t know any reason why you can’t and certainly you have every incentive in the world to behave yourself from now on out.’ ” Id. at 1044.

The court of appeals treated such statement, although unconcluded, as referring to the possibility of parole at the end of twenty months. Following the district court’s denial of two Rule 11-based § 2255 motions without evidentiary hearings, the court of appeals reversed, stating, “In short, the First and Third Circuits would say that ‘understanding the consequences of a guilty plea’ requires a personal explanation of anything which affects the length of detention. This appears to be the better view.” Id. at 1046.¹⁰ The opinion expressly restricts Trujillo, supra, to its bare facts and distinguishes Sanchez, supra, because of the trial court’s misleading statements to defendant Spradley.

In Harris v. United States, 6 Cir., 426 F.2d 99 (1970), defendant alleged in his § 2255 motion to vacate that the trial judge should have told him that as a result of his plea of guilty to a narcotics offense he would be precluded from parole ; that he had no idea that he would receive a sentence that carried no possibility of parole or probation; and that throughout the proceedings he was under the influence of narcotics and could not fully understand the meaning of the questions posed by the trial judge. The trial judge, without a hearing, denied the motion. The court of appeals did not consider defendant’s contention regarding the influence of narcotics drugs, but reversed and remanded the trial court’s denial since the “defendant indicted for a narcotic offense does not voluntarily plead guilty with knowledge of the consequences of his plea if he is unaware of his ineligibility for parole.” Id. at 101.

Finally, in Bye v. United States, 2 Cir., 435 F.2d 177 (1970), defendant Bye alleged in his § 2255 motion to vacate that he was unaware of his ineligibility for parole at the time of his plea of guilty to narcotics charges and that had he known, he would not have pleaded guilty.¹¹ The district court denied such motion without a hearing. The Second Circuit, noting that the purpose of Rule 11 is to insure that a defendant’s decision to plead guilty and thereby waive his rights is an informed one and that ineligibility for parole would make the mandatory period of incarceration three times as long, concluded that such a major effect on the length of possible incarceration would have great importance to an accused considering whether or not to plead guilty. The court rejected the rationale in Smith, supra, as of “no moment” since “Rule 11 is not concerned with the legislative genesis of the ineligibility for parole, but with the extent to which ineligibility for parole could influence an accused’s decision whether to plead guilty.” Id. at 180. It reversed and remanded, holding that Bye demonstrated a failure in the district court to comply with Rule 11 and that the Government had failed to satisfy its burden of showing that his guilty plea was entered voluntarily with an understanding of the consequences of the plea.

We agree with the positions taken by the Ninth, First, Third, Tenth, Sixth and Second Circuits, as well as the view expressed by the Fifth Circuit in Spradley v. United States, supra. Ineligibility for parole automatically trebles the mandatory period of incarceration which an accused would receive under normal circumstances.¹² It necessarily follows that it would have an effect on the expected length of detention and would have primary significance in an accused’s determination of whether to plead guilty. The purpose of Rule 11 is to insure that an accused does not plead guilty “except with a full understanding of the charges against him and the possible consequences of his plea.” Brady v. United States, 397 U.S. 742, 749 n. 6, 90 S.Ct. 1463, 1469 n. 6, 25 L.Ed.2d 747 (1970). The procedures therein are designed to assist the trial judge in making his requisite voluntariness determination and to produce a complete record of the factors relevant to such determination at the time the plea is entered. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Berlin, 7 Cir., 437 F.2d 901 (1971).

Accordingly, we hold that, consistent with the purpose and the procedures of Rule 11, ineligibility for parole is a consequence of a plea of guilty about which a defendant in a narcotics case must be informed pursuant to such rule.. In so holding, we reiterate and follow our adoption of the rationale in Berry v. United States, supra, in Marshall v. United States, 7 Cir., 431 F.2d 355 (1970), which was concerned with the necessity of informing a defendant of the possibility of consecutive sentences under each count of the indictment pursuant to Rule 11. In that § 2255 proceeding, in speaking for our court Judge Kerner said, at 357-358

“The Third Circuit in holding that the failure to apprise a defendant, pursuant to a plea of guilty, that the defendant would not be eligible for parole was failure to comply with the dictates of Rule 11, stated:

The mandate of Rule 11, before and after the 1966 amendment is designed to insure that the pleader is made aware of the outer limits of punishment. At the very least, this means that he must be apprised of the period of required incarceration * * When one enters a plea of guilty he should be told what is the worst to expect. At the plea he is entitled to no less — at sentence he should expect no more.

Under such circumstances, the knowledge of ineligibility for parole is as necessary to an understanding of the plea as is the knowledge of the maximum sentence possible. Failure to impart this information constituted a failure to explain to the appellant the consequences of his plea. Berry v. United States, 412 F.2d 189, 192-193 (3d Cir. 1969).

See also Durant v. United States, 410 F.2d 689 (1st Cir. 1969). We agree with the court’s reasoning in Berry * * *»

Appellant has demonstrated a failure by the district court to comply with Rule 11 in accepting his guilty plea. Such plea was entered prior to the date of the decision in McCarthy v. United States, supra, holding noncompliance with Rule 11 requires an automatic vacation of the guilty plea, made prospective only by Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). The proper remedy is remandment to the district court for a full evidentiary hearing on Smith’s claim that he was without understanding of the consequences of his pleas.

The Government contended on oral argument that Smith had such understanding because the actual sentence received by him requires mandatory incarceration within the range of the perceived mandatory periods he might have expected if parole were available. Smith received concurrent sentences of nineteen years and may be released without parole in just under thirteen years if he accumulates full credit for “good time.” See Title 18, U.S.C.A. § 4161. Thus it is argued, Smith’s expectations, knowing that he could receive a total sentence of forty years and the minimum service under such sentence would be thirteen and one-third years if parole were available, were allegedly not upset.

We disagree. Rule 11 entitles the accused to know the consequences of his guilty plea prior to the time of entering it so that he might accurately assess such consequences in making his determination. Hindsight reasoning comparing the actual sentence received with what it might have been does not overcome the risk that an accused will underestimate by a factor of three his period of mandatory incarceration when he makes such determination. See, Bye v. United States, supra at 180; Berry v. United States, supra, 412 F.2d at 191; and Durant v. United States, supra, 410 F.2d at 691.

The Government has failed to demonstrate from the record that Smith had an understanding of the consequences of his pleas of guilty to the narcotics charges prior to the time he entered such pleas.

For the foregoing reasons, the orders of the district court denying the § 2255 motions of defendant Smith are reversed, and this cause is remanded to the district court for a full evidentiary hearing on such motions and for such other purposes not inconsistent with this opinion as may be appropriate.

Reversed and remanded.

1 . Defendant was charged with violations of Title 21, U.S.C.A. § 174 (concerning the buying and selling of narcotic drugs) and Title 26, U.S.C.A. § 4705(a) (concerning the sale of narcotic drugs without the appropriate forms issued by the Secretary of the Treasury).

2 . Count II of each indictment charged a violation of Title 21, U.S.C.A. § 174. The remaining two counts were dismissed. Throughout these proceedings, Smith has been represented by privately-retained counsel.

3 . Title 26, U.S.C.A. § 7237(d) provides, inter alia:

“(d) No suspension of sentence; no probation; etc.- — Upon conviction—

[of certain offenses including violation of Title 21, U.S.C.A. § 174] * * * in the case of a violation of a law relating to narcotic drugs, section 4202 of title 18, United States Code, [relating to the granting of parole], and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24-201 and following), as amended shall not apply.”

Section 7237 has been repealed by Title III, Controlled Substances Import and Export Act, of the Comprehensive Drug Abuse Prevention and Control Act, section 1101(b) (4) (A), 84 Stat. 1236, effective May 1, 1971. Section 1103 of said Act provides that such repeal shall affect only prospective prosecutions.

4 . A prisoner is normally eligible for parole after serving one-third of his sentence. Title 18, U.S.C.A. § 4202.

5 . Defendant alleged in his motions that he was without understanding that one of the consequences of his plea would be ineligibility for parole. There was no allegation that he would have pleaded differently had he had such understanding.

6 . Smith was decided prior to the amendment to Kule 11 adding the words “and the consequences of [his] plea,” which became effective July 1, 1966, but it is quite clear that the court considered the question of ineligibility for parole in terms of a “consequence” of a guilty plea.

7 . The court points out in its opinion that Smith was subject to a maximum forty-year sentence and that even if parole were available, such sentence would result in confinement for longer than the eight unparoleable years received. Smith, supra at 440. The concurring opinion reasoned that no prejudice resulted to defendant since he did not receive a sentence “substantially greater than the maximum he might reasonably have expected, given the possibility of parole.” Id. at 442.

8 . Durant did not allege that he was not guilty of the charge to which he pleaded, see, Zaffarano v. United States, 9 Cir., 330 F.2d 114, 115 (1964), but the court refused to reach any issue created by such omission since it was basing its decisión on Rule 11. Durant, supra, 410 F.2d at 692, n. 8.

9 . The district court had held an evidentiary hearing on defendant’s motion, but had concluded that defendant had not been prejudiced.

10 . Even though the guilty plea was entered prior to the making of the incorrect statement by the trial judge, the court said that Rule 11 may apply since the court accepted the plea at the sentencing proceeding. The court held that if Rule 11 did not apply to such proceeding, the defendant was prejudiced because the trial court’s statement would have had the effect of removing defendant’s motivation to withdraw his plea of guilty, pursuant to Rule 32(d), at a time when such withdrawal would have been freely allowed.

11 . In a supporting affidavit, Bye claimed that his attorney advised him that he could be paroled and that he based his decision to plead guilty on such advice.

12 . This is true if we ignore allowances for “good time.” Even accepting such allowances, the mandatory period of incarceration would be a minimum of twice as long as the accused would receive if he were granted parole.