U.S. v. Alber

• Decision Date: 06 June 1995
• Docket Number: No. 93-10408,93-10408
• Citation: 56 F.3d 1106
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank R. ALBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1106

56 F.3d 1106

UNITED STATES of America, Plaintiff-Appellee, v. Frank R. ALBER, Defendant-Appellant.

No. 93-10408.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 9, 1994.

Decided June 6, 1995.

Atmore L. Baggott, Phoenix, AZ, for defendant-appellant.

Charles F. Hyder, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: FLETCHER, HALL, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Frank R. Alber appeals his guilty plea conviction and sentence. Alber pleaded guilty to one count of mailing a threatening communication, in violation of 18 U.S.C. Sec. 876, and one count of conspiring to mail a threatening communication, in violation of 18 U.S.C. Sec. 371. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part and remand in part.

I. FACTS AND PRIOR PROCEEDINGS

In November of 1989, Alber was employed by Marc Kaplan to do computer work for Kaplan's company. Alber became friends with the Kaplan family. When the business began to fail, he accepted a pay cut. Later, he and others were laid off. Some employees were reinstated when the business began to recover, but Alber was not.

Alber's life began to fall apart. He was unemployed. His business partnership failed. His girlfriend left him. He lost his townhouse through foreclosure. He was forced to sell his car. He was drinking heavily. Ultimately, Alber began to blame Marc Kaplan for his problems.

On February 6, 1992, Alber mailed a letter to Marc Kaplan. The envelope was marked "TO BE OPENNED [sic] BY MARC ONLY" and was sent to Kaplan's business address. The letter demanded that Kaplan pay $250,000 in cash within one week, or Kaplan's twelve-year-old son's arm or leg would be amputated by a group of former "officers in the special forces." The letter warned that these officers had previously committed similar violent acts of extortion. The letter indicated that Kaplan would receive a call on February 13, 1992, giving instructions. The letter was typed on Alber's computer. Kaplan reported the matter to the FBI.

Alber persuaded an acquaintance, Richard Fair, to make the February 13, 1992 phone call to Marc Kaplan. ¹ Fair instructed Kaplan to find a note attached to a pole at a closed bank. A fingerprint of Michael Miller was later found on the phone used to call Kaplan.

The note instructed Kaplan to drive to a lake and go to a boat ramp. Kaplan did so. Two cars, one registered to Miller and one registered to Mark Nelson, were observed by government agents at the lake. The two cars were parked side by side. At the boat ramp, Kaplan found another note and a suitcase. The note instructed him to put the cash in the suitcase, drive to a specified location, and place the suitcase in a box, and bury it. Kaplan proceeded to follow these instructions. Miller and Nelson followed Kaplan from the lake area. When Kaplan reached the highway, Miller and Nelson went in the opposite direction from Kaplan. When Kaplan stopped at a McDonald's pursuant to FBI instructions, however, Nelson's car also stopped. A passenger in Nelson's car approached Kaplan's car and looked in at Kaplan who was still seated in his car. Nelson then drove home in a manner designed to prevent others from following him.

On February 24, 1992, Fair confronted Alber. Alber admitted his part in the extortion plot. Alber claimed not to know Miller and Nelson, however. Upon their arrest, Miller and Nelson each denied involvement in the plot. ²

On February 26, 1992, Alber was indicted on two counts. Count II charged Alber with mailing a threatening communication, in violation of 18 U.S.C. Sec. 876. Count I charged Alber with conspiracy to commit the substantive offense in Count II. Miller and Nelson were also charged.

On January 20, 1993, Alber pleaded guilty to both counts. ³ However, Alber also told the district court that there was no conspiracy; he insisted that he had acted alone. In response, the government set forth specific facts to show that the conspiracy existed. The district court accepted Alber's plea to mailing a threatening communication, and took under advisement his plea to conspiracy. On January 21, 1993, the district court granted the government's motion to dismiss without prejudice the charges against Miller and Nelson.

Subsequently, at the first sentencing hearing, the district court reviewed the substantial evidence of the involvement of several persons in Alber's plot and then accepted his plea of guilty to the conspiracy count. ⁴ On April 30, 1993, Alber moved to withdraw his plea. Alber explained that he had been misinformed, asserting that he did not know that he could plead guilty to one count and request to go to trial on the other. On June 21, 1993, the district court denied Alber's motion to withdraw his plea.

The district court sentenced Alber to concurrent terms of 72 months in prison on each count, and three years of supervised release. Alber filed a timely notice of appeal. Alber is in federal custody serving his term of imprisonment.

II. DISCUSSION

1. Did the district court err by failing to advise Alber of the statutory maximum penalty for conspiracy, as required by Fed.R.Crim.P. 11?

Alber contends that the district court erred by accepting his guilty plea without first informing him of the maximum penalty he could receive for the crime of conspiracy. See Fed.R.Crim.P. 11(c)(1). Specifically, Alber argues that the district court failed to inform him that he could be sentenced to a three-year term of supervised release in connection with the conspiracy count. Alber further argues that the district court failed to advise him that he could potentially face two additional years in prison if his term of supervised release were revoked.

We review de novo the adequacy of a Rule 11 hearing. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988). The district court should have informed Alber of the specific number of years of supervised release he could receive. But, the district court's variance from the Rule 11 procedures was harmless error. See Fed.R.Crim.P. 11(h) ("Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded."). Alber's substantial rights were not affected because Alber knew before pleading guilty that he could be sentenced to a term as long as the one he eventually received. United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993); United States v. Clay, 925 F.2d 299, 303 (9th Cir.1991). Specifically, Alber knew before pleading guilty that he could be sentenced to 25 years of imprisonment. But he was sentenced only to two concurrent, six-year terms, and three years of supervised release, the maximum allowable for a Class C felony. 18 U.S.C. Sec. 3583(b)(2); U.S.S.G. Sec. 5D1.2(b)(2). Accordingly, under the worst case scenario, Alber would serve his full six-year term of imprisonment, be on supervised release for one day less than three years before having his supervised release revoked, and be reincarcerated for an additional two years, pursuant to 18 U.S.C. Sec. 3583(e)(3); see Clay, 925 F.2d at 303; United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987). Thus, at a maximum, Alber's liberty could be restricted for one day less than 11 years. Because one day less than 11 years is less than 25 years, Alber knew before pleading guilty that he could be sentenced to a term much longer than the one he eventually received. Accordingly, the district court's Rule 11 error is harmless. Clay, 925 F.2d at 303; United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir.1988) (per curiam).

2. Did the district court err by sentencing Alber to 6 years in prison on the conspiracy count?

We review de novo a district court's application of the Sentencing Guidelines. United States v. Uzelac, 921 F.2d 204, 205 (9th Cir.1990).

Alber argues that the district court erred by sentencing defendant to 6 years on the conspiracy count. We agree. A defendant cannot be sentenced to a term longer than the statutory maximum. See U.S.S.G. Sec. 5G1.2(b); U.S.S.G. Sec. 5G1.1(a). The statutory maximum for conspiracy is 5 years. 18 U.S.C. Sec. 371. Accordingly, the district court was required to set the sentence for the conspiracy count at no more than 5 years. See U.S.S.G. Sec. 5G1.2 commentary. We remand for resentencing in accordance with 18 U.S.C. Sec. 371 and U.S.S.G. Sec. 5G1.2(b).

3. Does a sufficient factual basis exist to support Alber's plea of guilty to conspiracy?

Rule 11(f) requires the district court to satisfy itself that there is a factual basis for all elements of the offense charged before accepting a guilty plea. United States v. Bos, 917 F.2d 1178, 1181 (9th Cir.1990); United States v. Alvarado-Arriola, 742 F.2d 1143, 1144 (9th Cir.1984). To establish a factual basis for the plea, the court may consider all of the evidence before it at the time of judgment. See Fed.R.Crim.P. 11(f) advisory committee notes (1974 amendment). If a defendant enters a guilty plea while continuing to assert his innocence, the district court may accept it if there is "a strong factual basis." North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162 (1970). "The court need not be convinced beyond a reasonable doubt than an accused is guilty. It need only be convinced that there is sufficient evidence to justify the reaching of such a conclusion." United States v. Neel, 547 F.2d 95, 96 (9th Cir.1976) (per curiam).

Alber argues that there was an insufficient factual basis for the district court to accept his plea of guilty to the conspiracy charge. See Fed.R.Crim.P. 11(f). Specifically, Alber argues that insufficient evidence existed that there were two or more persons involved.

We disagree. An examination of the record reveals a strong factual basis supporting Alber's plea of guilty to the charge of conspiracy. First, the letter itself...