Wilbur Bell v. United States of America, United States of America v. James Earl Sampson ( 1975 )

WIDENER, Circuit Judge

(concurring and dissenting):

I concur in the opinion and judgment of the court in Sampson’s case, No. 74—1464, but respectfully dissent in Bell’s case, No. 74-2280.

In Sampson’s ease, the district court, upon discovering the mistake, allowed the defendant the opportunity to withdraw his plea and enter a plea of not guilty if he chose. The district court, in Bell’s case, took the opposite view and only resentenced, adding the special parole term.

In my opinion, the course taken by the district court in Sampson’s case ought to be obligatory.

While the opinion of the majority states that the vice of the arraignment in Paige was the failure of the court to advise Paige that, as a second offender, he was ineligible for parole, the opinion in Paige discloses that not only was the defendant not advised as to his ineligibility for parole but also he was not advised as to the maximum sentence for a second narcotics conviction. Thus, the facts in Paige are very nearly indistinguishable from the facts here.¹ Although, in truth, the advice given to Paigé may have been a little more misleading than that given here, the difference is only that of small degree, for Paige was not advised of his ineligibility for parole, while Bell in the case at hand was not advised of the addition of a parole term.

In all events, in my opinion, the following quotation from Paige should be dispositive of this case, for the gist of the Paige opinion is not whether or not the defendant received, in total, a greater sentence than he was advised he might, but whether he had been advised of the full consequences of pleading guilty before he pleaded.

“The Government counters that Paige was not harmed by the court’s failure to comply with Rule 11 because the sentence which Paige received was well within the maximum for a first offense. We reject this argument because there is no way by which the effect of the court’s misleading statement upon the voluntariness of Paige’s guilty plea could be determined. Whether Paige would have elected to plead not guilty and put the Government to proof of his guilt had he known the full consequences of pleading guilty to a second narcotics offense is a matter of pure speculation. (Citation omitted) Thus, Paige is entitled to rearraignment on the charge which led to his second narcotics conviction, after being fully advised by the court pursuant to Rule 11 of the possible sentence which could be imposed, his ineligibility for parole, and other consequences of a guilty plea.” Paige v. United States, 443 F.2d 781, 783 (4th Cir. 1971).

1 . Neither was advised of the maximum term to which he might be confined as a consequence of a plea of guilty.