United States v. Justo Farias ( 1972 )

TUTTLE, Circuit Judge:

These are combined appeals' from sentences of 14 and 18 years, respectively, to run concurrently, following pleas of guilty by Farias to one count each of two-multi-count indictments for violating the Federal Narcotics Laws. The only ground of appeal, which we consider of significance, raises an important issue which, unfortunately, for the appellant, has been decided on records that are not substantially distinguishable from the one before us, contrary to the contention of the appellant.

Farias was represented by the office of the public defender in Miami, Florida. He elected to change his plea of not guilty to a plea of guilty to one count of each indictment. The trial court, speaking to the accused, through an interpreter, sought to make clear that Farias had been fully informed as to the possible maximum and minimum sentences that the court might mete out to him in the event of the court’s accepting such a plea. It is clear from the colloquy, that Farias understood that he could be sentenced to a maximum of 20 or a minimum of 5 years on these two charges. Having satisfied himself that the decision to enter the plea was voluntary, the trial court accepted the plea and, subsequently, another judge fixed the sentences as indicated.

Within a few days, the office of the public defender filed a motion to be relieved of representation of the accused, stating that Farias had inquired as to possible probation and for the first time counsel learned that, under the particular sections of the code under which Farias had been convicted, the length of the sentences was mandatory and there was no parole possible.

It was not disputed that the trial court did not mention, in its discussion with Farias, the fact that whatever sentence was meted out to him would not be subject to a subsequent shortening by the granting of parole, as is possible under substantially all but the narcotic law convictions. Moreover, the record before us indicates that the accused’s counsel was hot herself aware of this important distinction in the case of narcotics convictions.

The question has previously arisen in this circuit — whether the failure of the trial court to inform an accused upon tendering a plea of guilty of his inability to obtain consideration for parole, is one of the “consequences” of the plea that is required to be explained to an accused before such plea can be accepted by the court under the provisions of Rule 11, Federal Rules of Criminal Procedure.¹

In Trujillo v. United States, 5 Cir., 1967, 377 F.2d 266, cert. den. 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 this court first held that the trial court is not required to inform the defendant of ineligibility for parole, for it is not a “consequence of a plea of guilty . . . , rather it is a consequence of the withholding of legislative grace.”

In subsequent cases this court has felt itself bound by its Trujillo decision to arrive at the same result, although in one, Sanchez v. United States, 5 Cir., 1967, 417 F.2d 494, recognizing that several other circuits had joined the growing list in opposition to our Trujillo rule, stated:

“Were the question of parole ineligibility before this Court for the first time, the considerable appeal of these recent decisions might persuade us to a like position. However, in Trujillo v. United States, supra, and by implication in Dorrough v. United States, 5 Cir. 1967, 385 F.2d 887, 897, cert. den. 1969, 394 U.S. 1019, 89 S.Ct. 1637, 23 L.Ed.2d 44 this Court rejected the argument that parole ineligibility is a consequence of a guilty plea within the meaning of Rule 11. We are bound by that result . . . . ”

Subsequently, another panel of this court had before it a somewhat similar question in Spradley v. United States, 5 Cir., 1970, 421 F.2d 1043. In the Sprad-ley case this court reversed a judgment of the trial court refusing to vacate a sentence based on a guilty plea where the accused had not been informed of his ineligibility for parole, but the case permitted a distinction from Trujillo because in the Spradley case the trial court mistakenly misinformed the accused, in effect telling him that he could look forward to the possibility of parole after having served one-third of his sentence. However, in discussing the law dealing with the requirements of Rule 11 we construed our previous Sanchez opinion as strongly suggesting that that panel did not consider Trujillo the better view. We said:

“The language and reasoning used by this court in Sanchez, supra, strongly suggests that the Sanchez panel did not consider Trujillo the better view, however binding.”

We then proceeded to state, after pointing out the difference in the cicumstanc-es in Spradley:

“We conclude that the rule announced by this court in Trujillo ought not to be extended beyond the bare facts of that case.”

Since the decision in the Spradley case, additional Courts of Appeals in other circuits have taken their stand in opposition to our Trujillo case. See Bye v. United States, 2d Cir., 1970, 435 F.2d 177, and Harris v. United States, 6 Cir., 426 F.2d 99. Thus it is that this court and the Court of Appeals for the District of Columbia appear to be the only two of the nine circuits that have adhered to our view of this particular issue, the other seven aligning. themselves with the view that the failure of the trial court to tell a defendant tendering a guilty plea of his ineligibility for parole amounts to a failure adequately to tell him of the “consequences” of the plea.

As we have indicated above, this court is bound by the decision in Trujillo, which ruling can be modified only by an en banc decision of the court. While we agree with what was said in both Sanchez and Spradley that we think the prevailing view is the better, we conclude that we must affirm the judgment of the trial court based on the Trujillo decision. The judgment is affirmed.

1 . Rulo 11. Pleas.

A defendant may plead not guilty, guilty or with the [stated] consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily witli understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty, unless it is satisfied that there is a factual basis for the plea.