U.S. v. Jaramillo-Suarez

• Decision Date: 28 September 1988
• Docket Number: No. 87-5110,JARAMILLO-SUARE,D,87-5110
• Citation: 857 F.2d 1368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fabioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1368

857 F.2d 1368

UNITED STATES of America, Plaintiff-Appellee, v. Fabio JARAMILLO-SUAREZ, Defendant-Appellant.

No. 87-5110.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1988.

Decided Sept. 28, 1988.

Donald M. Re, Los Angeles, Cal., for defendant-appellant.

Jeffrey C. Eglash, Asst. U.S. Atty., Criminal Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, POOLE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Fabio Jaramillo-Suarez ("Suarez") appeals his conviction, entered upon a plea of guilty, to a charge of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Suarez contends the district court committed reversible error by failing to advise him, prior to accepting his guilty plea, of the maximum sentence he faced. See Fed.R.Crim.P. 11(c)(1). We have jurisdiction under 28 U.S.C. Sec. 1291 and we reverse.

BACKGROUND

Suarez was indicted on charges of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846 (Count I), possession with intent to distribute and distribution of cocaine, 21 U.S.C. Sec. 841(a)(1) (Count Prior to accepting the guilty plea, the district court asked Suarez if he had discussed the case with his attorney and whether he had been advised of the nature of the charges against him, his constitutional rights, and any possible defenses. The court further asked Suarez if he was satisfied with his attorney's representation, whether the plea was being made voluntarily and without promises of any kind, and whether Suarez understood the possible adverse effects his guilty plea could have on his residency status in the United States. No mention was made of the maximum possible penalty that Suarez faced upon pleading guilty.

II) and unlawful use of a communication facility in furtherance of narcotics trafficking activity, 21 U.S.C. Sec. 843(b) (Count III). After initially pleading not guilty, Suarez withdrew his not guilty plea and entered a plea of guilty to Count I of the indictment.

Approximately two months later at Suarez's sentencing hearing, his counsel stated that Suarez's case had initially been prosecuted in state court, and that the maximum sentence Suarez faced on the state charges was fifteen years. (The maximum sentence Suarez faced on the federal charge to which he pleaded guilty was twenty years.) Suarez's counsel asked that the court not impose a sentence of more than "eight or nine years." The court sentenced Suarez to a term of fifteen years.

ANALYSIS

Suarez contends his conviction is invalid as a matter of law. We therefore review the district court's judgment de novo. United States v. Whitney, 785 F.2d 824, 825 (9th Cir.), as amended, 838 F.2d 404 (1986).

Fed.R.Crim.P. 11(c)(1) requires the district court, before accepting a plea of guilty, to personally address the defendant in open court and inform him of, and determine that he understands, "the maximum possible penalty provided by law...." The government concedes that the district court failed to comply with the literal terms of Rule 11(c)(1) by failing to inform Suarez of the maximum sentence that could be imposed. ¹ The government contends, however, that the district court's omission was harmless error.

Subdivision (h) of Rule 11, entitled "Harmless Error," provides: "Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." The issues we are presented are (1) whether the district court's omission was a variance from Rule 11's strictures which should be disregarded as harmless error; and if not, (2) whether we should remand for a hearing to inquire into just what Suarez knew about the maximum sentence he faced when he entered his plea. In considering these questions, we find it helpful to review some of the cases that have interpreted Rule 11 both before and after the addition of subdivision (h) in 1983.

The Federal Rules of Criminal Procedure were formally adopted in 1946. At that time, Rule 11 was substantially a restatement of then existing law and practice. See Fed.R.Crim.P. 11 Advisory Committee's note 1. The rule placed a duty on the court to ascertain that a defendant's guilty plea was made voluntarily and with an understanding of the nature of the charge. See id.; see also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Fogus v. United States, 34 F.2d 97, 98 (4th Cir.1929).

In Munich v. United States, 337 F.2d 356 (9th Cir.1964), we held that when the district court failed to comply with the requirements of Rule 11, if the plea was in fact made voluntarily and with an understanding of the nature of the charge, the error was harmless and the plea would stand. Munich, 337 F.2d at 360. See also Long v. United States, 290 F.2d 606, 607 (9th Cir.1961). We stated in Munich that Rule 11 was mandatory and that a district court had to take whatever steps it deemed necessary to satisfy itself that the defendant understood "(1) the meaning of the charge, (2) what acts are necessary to establish guilt, and (3) the consequences of pleading guilty to the charge." Munich, 337 F.2d at 359. However, so long as it appeared that there existed a substantial basis in fact that the defendant understood these questions, the court was not required to follow any particular ritual, personally explain the nature of the charge (so long as the defendant's attorney had explained to him the charge and possible penalties), or enter a formal finding or recitation that the plea was voluntarily and intelligently made. Id. at 359-60. Moreover, we held that the determination whether the plea was voluntarily and intelligently entered could be made in a subsequent proceeding brought under 28 U.S.C. Sec. 2255. Id. at 360.

One year after Munich, we decided Heiden v. United States, 353 F.2d 53 (9th Cir.1965). In Heiden, as in Munich, a prisoner challenged the legality of his conviction under 28 U.S.C. Sec. 2255. We expressly overruled both Long and Munich to the extent that those cases permitted a court to ascertain at a subsequent hearing whether a defendant had voluntarily and intelligently entered a guilty plea. Id. 353 F.2d at 55. Heiden required the district court to make the required ascertainment of understanding on the record at the time of the arraignment. Id. The purpose of this rule was to avoid uncertainty and prejudice to the defendant which is more likely to occur as time passes between arraignment and a subsequent determination of what the defendant actually did or did not know at the time he pleaded. In Heiden we directed the district court to vacate the defendant's conviction and afford him an opportunity to plead anew. Id.

Our holding in Heiden was bolstered when, in 1969, the Supreme Court decided McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In McCarthy, the Court held that any noncompliance with Rule 11 is reversible error: "A defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." Id. at 463-64, 89 S.Ct. at 1169. The Court concluded that

prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the rule's procedural safeguards, which are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding [is] that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew....

Id. at 471-72, 89 S.Ct. at 1173-74; see also United States v. Del Prete, 567 F.2d 928, 929 (9th Cir.1978) (disclosure of each of the Rule 11 factors is mandatory).

The McCarthy per se rule was decided in the context of a direct appeal from the defendant's conviction. By contrast, where the district court's compliance with Rule 11 is challenged in the context of a collateral attack pursuant to 28 U.S.C. Sec. 2255, the Court has held that a technical violation of the rule will not support section 2255 collateral relief in the absence of a showing of constitutional error or special prejudice. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). ²

The difference between challenges by direct appeal as exemplified by McCarthy, and collateral attack as set forth in Timmreck, was narrowed when subdivision (h) was added to Rule 11 in 1983. As the Advisory Committee notes to Rule 11(h) point out, the McCarthy per se rule was no longer justified following the extensive amendments to Rule 11 which took place in 1975. When McCarthy was decided in 1969, Rule 11 was much shorter and simpler than the present version. ³ It only consisted of four sentences, and "the chances of a minor, insignificant and inadvertent deviation were slight." Fed.R.Crim.P. 11(h) Advisory Committee's note to the 1983 amendment. This is no longer the case. "[T]he chances of a truly harmless error ... are much greater under present Rule 11 than under the version before the Court in McCarthy." Id. In view of this, and in light of the much more elaborate procedures of present Rule 11, "[a] plea ... should not be overturned, even on direct appeal, when there has been a minor or technical violation of Rule 11 which amounts to harmless error." Id. This harmless error concept is embodied in subdivision (h).

Subdivision (h), however, may not be applied to nullify or dilute important Rule 11 safeguards. As the Advisory Committee notes to Rule 11(h) make clear, "subdivision (h) makes no change in the responsibilities of the judge at Rule 11 proceedings, but instead merely rejects the extreme sanction of automatic reversal." Id. Although subdivision (h) modified McCarthy 's rule of per se reversal, a district court judge must still engage in careful and thorough compliance with the rule's requirements,...