McRae v. U.S.

• Decision Date: 26 August 1976
• Docket Number: No. 76-1206,76-1206
• Parties: Garth McRAE, Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 943

540 F.2d 943

Garth McRAE, Appellee, v. UNITED STATES of America, Appellant.

No. 76-1206.

United States Court of Appeals,

Eighth Circuit.

Submitted June 18, 1976.

Decided Aug. 26, 1976.

Frederick B. Polak, U. S. Dept. of Justice, Washington, D.C., for appellant; Robert G. Renner, U. S. Atty., D. Minnesota, Minneapolis, Minn., on brief.

William J. Mauzy, Minneapolis, Minn., for appellee.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal by the United States from an order of the district court granting relief to Garth McRae under 28 U.S.C. § 2255. McRae's action is based on the premise that at the time of his plea and sentences he had not been properly advised of the existence of a "special parole term" mandatorily imposed under 21 U.S.C. § 841(b)(1)(A) for drug offenses. The special parole term has been held to be a "consequence of the guilty plea" under Fed.R.Crim.P. 11 about which a defendant must be advised. United States v. Richardson, 483 F.2d 516 (8th Cir. 1973). The district court in reliance on the Richardson opinion held that McRae's sentences received pursuant to his guilty pleas must be vacated because "the petitioner (McRae) was not advised on the record of the meaning of the special parole term * * *." McRae v. United States, (D.Minn. filed Feb. 5, 1976) slip op. at 4. We reverse the judgment of the district court with directions to reinstate the sentence previously imposed.

McRae pleaded guilty on July 3, 1974, to one count of conspiracy and one count of possession with intent to distribute illegal drugs in violation of 21 U.S.C. §§ 846 and 841(a)(1). Pursuant to a plea bargain, other counts remaining against McRae were dismissed. The transcript of the guilty plea hearing indicates that no mention was made of the special parole term; however, the defendant was questioned thoroughly about the facts underlying the conspiracy and possession and his willingness to plead guilty. He was told several times that under the plea bargain he would face a maximum incarceration period of seven years.

On September 5, 1974, McRae was sentenced on the two counts for a period of three years. The court further stated "(a) special parole term of three years is added to this sentence pursuant to 21 United States Code 841(b)(1)A." The court failed to state whether McRae was being sentenced under one or both counts. One week later on September 12, 1974, the sentence on the conspiracy count was vacated since it did not comply with the plea bargain which was to the effect that McRae was to receive only two years on the conspiracy count. At the September 12 resentencing to correct this error McRae was sentenced to two years on the conspiracy count, three years on the possession count, and the terms were made concurrent. The special parole term was again added.

Almost one year later in August 1975 McRae made the motion to vacate sentence reviewed here. At the district court hearing McRae asserted on direct examination that he had no knowledge of the meaning of "special parole term" prior to a conversation with an acquaintance at Sandstone Prison where he was incarcerated; that he had not discussed the special parole term at any time with his counsel; and that he had not understood the special parole term's meaning at the time he submitted the guilty plea. These assertions, the authority of Richardson, and the lack of mention of special parole on the record of the guilty plea hearing persuaded the district court to vacate the sentences. The court did so on the rationale that Richardson imposes a per se rule of automatic reversal: "(I)f the record does not reflect the defendant's understanding of the special parole term, the sentence must be vacated." McRae v. United States, No. 3-75 Civ. 302 (D.Minn. filed Feb. 5, 1976) slip op. at 4. The district court felt "constrained to follow the per se rule adopted in Richardson," even though the "(c)ourt finds it difficult to believe that the petitioner did not understand the meaning of his special parole term." Id.

Since our court's decision in Richardson in 1973, the Supreme Court has further explored the parameters of § 2255 review. In Davis v. United States, 417 U. S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) the Court determined that certain nonconstitutional errors of law should be within § 2255 purview by emphasizing the language and history of the statutory section. Davis v. United States, supra, 417 U. S. at 344, 94 S.Ct. 2298, 41 L.Ed.2d 109. While thus redefining the types of error cognizable in habeas corpus, the Court stressed that the magnitude of any claimed error was also a threshold consideration. The Court warned that not "every asserted error of law can be raised on a § 2255 motion." Davis v. United States, supra, 417 U.S. at 346, 94 S.Ct. at 2305. Noncompliance with the formal requirements of a rule of criminal procedure would not permit collateral review in the absence of indicated prejudice to the defendant. Davis v. United States, supra, 417 U.S. at 346, 95 S.Ct. 2298, quoting Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). To test the error's magnitude, the Court suggested that:

(T)he appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "(i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent."

Davis v. United States, supra, 417 U. S. at 346, 94 S.Ct. at 2305. ¹

It is in the light of this standard that the Seventh Circuit has recently considered the special parole term issue. Bachner v. United States, 517 F.2d 589 (7th Cir. 1975). The appeals court first concluded that the "(f)ailure to advise a defendant of the mandatory parole term does not inherently result in a complete miscarriage of justice," id. at 597 (emphasis added), and then examined the facts surrounding Bachner's plea. It concluded that no prejudice had inhered to the individual defendant. Id. at 592, 597.

Concededly, a Rule 11 error was made in the present case as pointed out by this court's holding in Richardson; but the evaluation of that error in post-Davis § 2255 proceedings will now require that the error be placed in the context of all surrounding legal events and indicated prejudices. ²

In our opinion this case presents no fundamental defect inherently resulting in a complete miscarriage of justice where the need for the remedy afforded by the writ of habeas corpus is apparent. Several factors place this case outside the factors present in Richardson.

The appellee McRae participated in a plea bargain, making an agreement for a maximum of seven years of incarceration. The transcript of the § 2255 hearing does not reveal an uninformed defendant, but instead indicates that McRae actively participated with his attorney in the plea negotiations and in formulating the bargain. Besides participation in the plea bargaining, it is clearly established on the record, before McRae's admission of his guilt, that he understood he faced a possible seven year incarceration term as a consequence of the plea. In actuality he received only a three year term on one count which ran concurrently with a two year term on the second count. Even if the three year special parole term were to materialize, the maximum period of incarceration would be six years, one year less than the maximum he had bargained for. This result, lacking in prejudice to the defendant, was relied on in Bachner v. United States, supra, 517 F.2d at 597.

Bachner has not been prejudiced by the court's omission to advise him of the mandatory parole term. He was told that he could receive as much as fifteen years, and he could not have complained if the court had given him that long a sentence. Instead he initially received (concurrent with his other ten-year sentence) a ten-year sentence, to which the statute required the addition of a parole term, and ultimately received a seven-year sentence with the three-year parole term added. The sentence he received was substantially below the maximum he had been told he could receive.

Id.

Moreover, there is evidence that at the time of the plea McRae was not concerned that his future parole violations might have special consequences. ³ At the § 2255 hearing Mr. Jack Winnick, counsel for the...