U.S. v. Good

• Decision Date: 27 May 1994
• Docket Number: No. 92-5773,92-5773
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tony GOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 218

25 F.3d 218

UNITED STATES of America, Plaintiff-Appellee, v. Tony GOOD, Defendant-Appellant.

No. 92-5773.

United States Court of Appeals, Fourth Circuit.

Argued March 11, 1994.

Decided May 27, 1994.

ARGUED: Lonnie Dayton Nunley, III, Hunton & Williams, Richmond, VA, for appellant. William G. Yarborough, III, Asst. U.S. Atty., Greenville, SC, for appellee. ON BRIEF: Evelina J. Norwinski, Hunton & Williams, Richmond, VA, for appellant. J. Preston Strom, Jr., U.S. Atty., Lynne M. Ray, Third-Year Law Student, Columbia, SC, for appellee.

Before WILKINSON and WILLIAMS, Circuit Judges, and BRINKEMA, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed and remanded by published opinion. Judge BRINKEMA wrote the opinion, in which Judge WILKINSON and Judge WILLIAMS joined.

OPINION

BRINKEMA, District Judge:

Tony Good was indicted along with twenty-six codefendants for conspiracy to possess with intent to distribute and to distribute both cocaine, a Schedule II controlled substance, and marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. Sec. 846 and Sec. 841(a)(1). Under a written plea agreement which limited the quantity of drugs for which Good was responsible to three kilograms of cocaine, Good entered a guilty plea to the conspiracy count. Before his sentencing hearing Good moved to withdraw his guilty plea; then he changed his mind and withdrew the motion. The district court sentenced Good to eighty months incarceration followed by five years of supervised release.

On appeal Good asks us to vacate his plea because it was taken in violation of the requirements of Rule 11 of the Federal Rules of Criminal Procedure and because the district judge discussed a specific guideline range not used at sentencing. Although we find that the district judge failed to comply fully with Fed.R.Crim.P. 11(c) and this Court's holding in Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979), we nevertheless conclude that this error was harmless. We also find that the district court did not mislead the defendant as to his possible sentence. We therefore decline to vacate Good's plea and conviction. We must, however, remand this case for correction of the Judgment Order which erroneously states that Good was convicted of a violation of 21 U.S.C. Sec. 846 and Sec. 841(b)(1)(A), whereas given the quantity of drugs involved, Good's conviction was under 21 U.S.C. Sec. 846 and Sec. 841(b)(1)(B).

I.

Because Good raises purely legal issues, we dispense with a description of the facts underlying the substantive offense. Good argues that his plea was not voluntarily made because the district court did not advise him of all the effects of his guilty plea, specifically, the effect of supervised release. Our review of the adequacy of the plea is de novo. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).

Rule 11 of the Federal Rules of Criminal Procedure mandates that before the court accepts a guilty plea, it must personally question the defendant to ensure that he is entering the plea knowingly and voluntarily. Rule 11(c) further requires that the court ascertain that:

the defendant understands the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense.

During the plea colloquy concerning representations about possible sentence ranges, the prosecutor told the judge that, given the amount of cocaine involved, the punishment

... would be not less than five nor more than forty years in prison, no probation or parole, a fine of two million dollars and a term of supervised release of at least four years in addition to the term of imprisonment.

The district court then addressed Good three times asking him in different ways whether he understood the penalty he faced.

THE COURT: Did you hear that, Mr. Good?

THE DEFENDANT: Yes.

THE COURT: And you and your attorney have discussed that as being the maximum sentence the court could impose. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Knowing what the charge is that you're pleading guilty to and knowing what the maximum sentence is, do you still wish to plead guilty?

THE DEFENDANT: Yes.

Although the court correctly advised Good of the possible maximum and minimum penalties and the minimum applicable period of supervised release, the district court failed to explain the significance of supervised release. The United States concedes that this was error under Moore v. United States, 592 F.2d 753 (4th Cir.1979). ¹

Once a violation of Fed.R.Crim.P. 11 is established, as here, our inquiry must focus on whether the error was harmless. (Fed.R.Crim.P. 11(h)). Under Rule 11(h), only where a violation of the rule affects a defendant's substantial rights is it appropriate to vacate a conviction. United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992). ² We have generally held that failure to discuss the nature of supervised release is harmless error if the combined sentence of incarceration and supervised release actually received by the defendant is less than the maximum term he was told he could receive. Moore, 592 F.2d at 756; Bell v. United States, 521 F.2d 713, 715 (4th Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976).

Good argues that when he pled guilty he did not know that his punishment could include additional incarceration if he violated the terms of supervised release and that in a worst case scenario he could be under supervision for life and therefore exposed to incarceration for life. The United States, on the other hand, argues that the error was harmless because the total term of incarceration and supervised release imposed, that is 140 months, did not exceed the statutory maximum of forty years imprisonment which had been clearly explained to Good during the plea colloquy. United States v. Iaquinta, 719 F.2d 83, 85 (4th Cir.1983). See also Bell v. United States, 521 F.2d 713 (4th Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976). Moreover, the United States argues that Good's view of the "worst case" scenario is based on an incorrect calculation of the supervised release imposed.

Under 18 U.S.C. Sec. 3583(a) (West Supp.1993), the court may include as part of any sentence for a misdemeanor or felony "a term of supervised release after imprisonment." Section 3583(b) sets the maximum periods of supervised release.

Except as otherwise provided, the authorized terms of supervised release are--

1) for a Class A or B felony, not more than five years. ³

Under the written plea agreement and as reflected in the plea colloquy, Good actually pled guilty to a lesser included offense of the conspiracy count. The conspiracy count in the indictment alleged cocaine quantities exceeding five kilograms of cocaine. However, in paragraph nine of the written agreement, the United States agreed that "the amount of drugs readily provable against the defendant ... is approximately three kilograms of cocaine." During Good's plea colloquy, the prosecutor described his maximum exposure as that applied to offenses involving between 500 grams and five kilograms of cocaine. "That's statutory punishment. It's a violation of 21 U.S.C. Sec. 841(a)(1)(b)(1)(B)."

For a first offender, 21 U.S.C. Sec. 841(b)(1)(B) provides for a sentence of between five and forty years imprisonment and "at least four years" of supervised release. 21 U.S.C. Sec. 841(b)(1)(B) (West Supp.1993). Because the maximum imprisonment penalty exceeds twenty-five years, but is less than life, this offense is classified as a Class B felony. 18 U.S.C. Sec. 3559(a)(1) (West Supp.1993). The maximum period of supervised release authorized for a Class B felony is five years. 18 U.S.C. Sec. 3583(b)(1).

Good fastens his "worst case" scenario on the mistaken belief that 18 U.S.C. Sec. 3583(e)(2) permits unlimited modifications of supervised release. Section 3583 in general grants courts the discretion to modify or revoke conditions of supervised release. Section 3583(e)(2) provides that a court may

... extend a term of supervised release if less than the maximum authorized term was previously imposed.

Because 21 U.S.C. Sec. 841(b)(1)(B) speaks only of a minimum period of supervised release, Good argues that the court could conceivably extend his supervised release for life because there is no maximum authorized term, citing as his sole authority Rodriguera v. United States, 954 F.2d 1465, 1469 (9th Cir.1992). We respectfully decline to follow the Ninth Circuit on this matter. In both Rodriguera and United States v. Sanclemente-Bejarano, 861 F.2d 206 (9th Cir.1988), the Ninth Circuit has held that "pursuant to 18 U.S.C. Sec. 3583(e)(2) a supervised release term may also be extended, potentially to a life term, at any time before it expires." 861 F.2d at 209. That conclusion is not supported by the clear language of the applicable statutes and has not been followed by other courts.

Although there is no maximum period of supervised release expressed in the statutory language of 21 U.S.C. Sec. 841(b)(1)(B), as discussed above, the maximum period of supervised release for a first offender found guilty of this Class B felony is five years. This conclusion is consistent with that of the United States Sentencing Guidelines, which provide that:

If a defendant is convicted under a statute that requires a term of supervised release, the term shall be at least three years but not more than five...