169 F.3d 131 (2nd Cir. 1999), 98-1112, United States v. Andrades

Docket Nº:Docket No. 98-1112.
Citation:169 F.3d 131
Party Name:UNITED STATES of America, Appellee, v. Dereck W. ANDRADES, also known as Light, also known as Dererrick Blocker, Defendant-Appellant.
Case Date:February 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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169 F.3d 131 (2nd Cir. 1999)

UNITED STATES of America, Appellee,


Dereck W. ANDRADES, also known as Light, also known as

Dererrick Blocker, Defendant-Appellant.

Docket No. 98-1112.

United States Court of Appeals, Second Circuit

February 26, 1999

Argued Dec. 9, 1998.

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Darrell B. Fields, Legal Aid Society Federal Defender Division Appeals Bureau, New York, NY, for Defendant-Appellant.

Paul D. Silver, Assistant United States Attorney, Northern District of New York (Thomas J. Maroney, United States Attorney), for Appellee.

Before: OAKES, JACOBS, and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Dereck W. Andrades appeals from the November 25, 1997, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge ) sentencing him to, among other things, 92 months imprisonment for his participation in a conspiracy to distribute cocaine base. Andrades asks that we vacate his plea of guilty to the criminal charge because the district court did not advise him of the effect of supervised release and failed to establish the factual basis for his plea or assure itself that appellant understood the nature of the conspiracy charge. Although we find the district court's error regarding supervised release to be harmless, we must vacate Andrades' guilty plea because the record does not establish that Andrades understood the nature of the crime to which he pleaded guilty. A criminal defendant's plea of guilty is perhaps the law's most significant waiver of constitutional rights, and district courts must not accept this waiver lightly. Rather, the judge must administer this proceeding actively, diligently and with full attention to detail.


A three-count indictment filed on April 24, 1997, charged Andrades with participating in

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a cocaine base distribution conspiracy and substantive crack distribution and possession in August 1996, in violation of 21 U.S.C. §§ 841, 846. The substantive counts concerned crack sales that took place in Troy, New York on August 16 and 27 in 1996. On July 22, 1997, Andrades pleaded guilty to the conspiracy charge pursuant to a written plea agreement. During the seven-minute plea allocution, the district court did not explain to Andrades the effect of supervised release. Specifically, Judge Scullin did not inform Andrades that if he violated his conditions of supervised release, then he could be imprisoned for the entire supervised release term without credit for time previously served. The district court also failed to elicit from defendant or the government a statement of the factual basis for the plea. Instead, the following exchange took place:

THE COURT: All right. Count I of the indictment 97-CR-115 charges, in essence, that on or about August 1, 1996, continuing through August 31, 1996, that you did knowingly, willfully and unlawfully conspire with others to intentionally and unlawfully distribute and possess with intent to distribute cocaine base, in violation of federal law. Is this what you did?


THE COURT: With respect to Count I, then, of indictment 97-CR-115, how do you plead, guilty or not guilty?

THE DEFENDANT: Guilty, sir.

Andrades' plea agreement did not describe supervised release or recite the elements of the crime of conspiracy or the factual basis for the charge. The agreement did contain a statement of maximum statutory penalties, a non-binding calculation of Andrades' offense level under the Sentencing Guidelines, and discussion concerning the government's ability to make a downward departure motion at sentencing based on Andrades' substantial assistance to authorities. Judge Scullin conducted a sentencing hearing on November 12, 1997, to determine whether Andrades distributed drugs on August 27, 1996, and found that defendant and an individual known as "Crunch" sold crack cocaine to two confidential informants on that date. The district court sentenced Andrades on November 12, 1997, to 92 months imprisonment, four years supervised release, and a $100 special assessment. Andrades now appeals his conviction.


I. Informing defendant of the effect of supervised release

Rule 11 of the Federal Rules of Criminal Procedure governs our analysis. Rule 11 sets forth requirements for a plea allocution and "is designed to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative courses of action open to the defendant." United States v. Renaud, 999 F.2d 622, 624 (2d Cir.1993) (citations and quotations omitted). See also United States v. Westcott, 159 F.3d 107, 112 (2d Cir.1998), petition for cert. filed, 119 S.Ct. 831, 67 U.S.L.W. 3435 (1999). We "generally require sentencing courts to adhere strictly to the specific provisions of Rule 11." Renaud, 999 F.2d at 624. The minimum standard of information that a district court must personally impart to defendant is contained in Rule 11, but the rule also provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 11(h). Therefore, we will not overturn guilty pleas "when there has been a minor and technical violation of Rule 11 which amounts to harmless error." Renaud, 999 F.2d at 624 (quotation and citation omitted). Harmless error encompasses "such minor errors as a modest understatement of the maximum penalty, where the penalty actually imposed did not exceed the maximum as erroneously represented by the court." Id. at 624-25 (citations omitted).

In the course of accepting a defendant's guilty plea, the district court must "inform the defendant of, and determine that the defendant understands ... the maximum possible penalty provided by law, including the effect of any special parole or supervised release term...." Fed.R.Crim.P. 11(c)(1). The district court failed to comply with this requirement while taking Andrades' guilty plea because Judge Scullin did not explain supervised release at all or discuss its potential impact on Andrades' sentence. Cf. United

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States v. Gonzalez, 820 F.2d 575, 580 (2d Cir.1987) (per curiam ) (discussing special parole). The government contends, however, that the error was harmless. We agree.

In some instances, the error is harmless where a district court misinforms defendant of the potential term of incarceration and the actual sentence he receives is less than that stated during the plea allocution. Westcott, 159 F.3d at 112-13. In Renaud, we found harmless error even though the district court sentenced defendant to a longer supervised release term than that of which he was advised because defendant did not wish to withdraw his guilty plea. Renaud, 999 F.2d at 625. We now join with those circuit courts of appeals holding that the error is harmless where the district court misinforms a defendant of the applicable supervised release term and the total sentence of imprisonment and supervised release actually imposed is less than that described during the plea allocution. See United States v. Fuentes-Mendoza, 56 F.3d 1113, 1114-16 (9th Cir.1995); United States v. Raineri, 42 F.3d 36, 41-42 (1st...

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