U.S. v. Gracia
| Decision Date | 02 February 1993 |
| Docket Number | No. 92-8130,92-8130 |
| Citation | 983 F.2d 625 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eduardo GRACIA, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Eduardo Gracia, pro se.
Richard L. Durbin, Jr., San Antonio, TX, Mark R. Stelmach, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.
Appeal from the United States District Court For the Western District of Texas.
Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit Judges.
Eduardo Gracia appeals his conviction and sentence after a guilty plea to a charge of conspiracy to possess marihuana with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1). Although represented by counsel at trial, Gracia proceeds pro se herein. Because the trial court failed to impose the mandatory three-year term of supervised release, we modify the sentence to conform to the statutory requisites. Finding no error in the conviction or sentence in any other respect, we affirm as modified and return the matter to the district court for correction of the judgment and commitment order.
In the fall of 1990, authorities learned of an illegal operation involving marihuana obtained in Mexico, smuggled into this country at Laredo, and transported by tractor-trailers to Austin. David Williams led the organization, while Gracia and his brother Sylvestre had responsibility for obtaining the contraband in Mexico and arranging for its delivery to Austin. On December 6, 1990 authorities executed federal search warrants, seized over 1000 pounds of marihuana, and arrested Williams and Sylvestre. Four months later Gracia was arrested upon reentering the country.
Gracia was indicted for conspiracy to possess marihuana with intent to distribute, the substantive possession offense, and the utilization of proceeds of unlawful drug sales to conduct a financial transaction with intent to promote the distribution of marihuana. Gracia agreed to plead guilty to the conspiracy count; the government agreed to dismiss the remaining counts and to pursue no further prosecutions based on the operation. The guilty plea was accepted. Gracia stood convicted and was sentenced to 180 months imprisonment, five years supervised release, a fine, and the statutory assessment. He timely appealed.
Gracia alleges many imperfections in the Fed.R.Crim.P. 11 plea colloquy. He further asserts that his plea was involuntary because the prosecutor and his own attorney misinformed him about the period of incarceration he faced. He contends that he received ineffective assistance of counsel. He also contends that the trial court based the sentence on inaccurate information, including the computation of the quantity of marihuana involved, and he maintains that his punishment exceeds statutory maxima. Except as noted with reference to the period of supervised release, no assignment of error has merit.
Gracia first challenges the guilty plea hearing. We have long recognized that Fed.R.Crim.P. 11 provides prophylactic protection for the constitutional rights involved in the entry of guilty pleas. 1 When considering challenges to guilty plea proceedings, we have focused on three core concerns: absence of coercion, the defendant's understanding of the charges, and a realistic understanding of the consequences of a guilty plea. 2 Total failure of the district court to address a core concern requires vacatur of the conviction and a remand so that the defendant may plead anew. 3 Under Fed.R.Crim.P. 11(h), however, trial court errors not constituting total failure to address a core concern may be subjected to a harmless error analysis. 4 Under that analysis, an error not affecting the defendant's substantial rights does not require reversal. 5
Gracia correctly notes that at the rearraignment proceeding the district court understated by one year the minimum potential term of supervised release. 6 This failure implicates the core concern of informing the defendant about the consequences of his guilty plea. In Bachynsky, however, we held that a district court's failure to mention the possibility of supervised release does not alone constitute a total failure to address this core concern, provided the sentence actually imposed cannot restrict the defendant's liberty for a period exceeding the statutory maximum as advised. 7 Inasmuch as we modify the district court sentence to impose a three-year supervised release term as mandated by coterminous statutory maximum and minimum provisions, the case at bar meets the Bachynsky test and harmless error analysis applies. 8 The record persuades us that the trial court's misstatement did not materially influence Gracia's decision to plead guilty and thus constituted harmless error. 9
Gracia's claim that the district court violated Fed.R.Crim.P. 11(d) by failing to inquire into promises apart from the plea agreement lacks merit. At rearraignment, in response to the district court's inquiries, Gracia testified that no one had threatened, coerced, or forced him in any way to plead guilty, and that no one had made any "prediction, prophecy or promise" as to his sentence. Those inquiries satisfied the requirements of Rule 11(d) with regard to promises outside the plea agreement. 10
Gracia next contends that his reliance upon misinformation from both prosecution and defense counsel about the likely period of incarceration rendered his guilty plea involuntary. He claims that both the prosecutor and defense counsel told him that if he pleaded guilty he would be sentenced to 120 months. This is not a sufficient basis to set aside a guilty plea where, as here, the trial court properly advised the defendant about the possible maximum penalty. 11
For the first time on appeal, Gracia claims that because the Sentencing Commission exceeded its statutory authority in enacting U.S.S.G. § 1B1.3, 12 and because of the Supreme Court's holding in Hughey v. United States, 13 the district court erroneously sentenced on the basis of relevant conduct not constituting part of the offense of conviction. We do not agree. In United States v. Thomas, 14 we addressed the question of Hughey's effect on sentencing under section 1B1.3. Although we have not before squarely addressed the statutory point, we now hold, consistent with dictum in Thomas 15 and the holdings of our colleagues in other circuits, 16 that 28 U.S.C. § 994(c)(2) 17 provides statutory authority for U.S.S.G. § 1B1.3.
Gracia claims that the district court improperly relied on a presentence report containing inaccurate information, resulting in a sentence computed on the basis of conduct involving 3000 kilograms of marihuana. 18 While Gracia objected at sentencing to the quantity used in the PSR, he failed to present evidence to rebut the information underlying those calculations. Presentence reports generally bear indicia of reliability sufficient to permit reliance thereon at sentencing; 19 this case, involving a report based on the results of the DEA investigation, is no exception. 20 A defendant challenging information presented at sentencing bears the burden of demonstrating its untruth, inaccuracy, or unreliability. 21 In the absence of rebuttal evidence from Gracia, the trial court correctly relied on the PSR in tallying the amount of marihuana involved in this case. 22
Gracia correctly maintains that the district court exceeded the statutory maximum in imposing a five-year term of supervised release. As 21 U.S.C. § 841(b)(1)(C) provides for a maximum of 20 years imprisonment, violation of that statute constitutes a class "C" felony 23 and carries a maximum supervised release term of three years. 24 Because 21 U.S.C. § 841(b)(1)(C) requires a minimum of three years supervised release, however, there is no need for a new sentencing proceeding. In the interest of judicial economy, we will merely modify the district court's judgment to impose the statutorily mandated three-year term of supervised release.
In the absence of an adequate record against which to assess Gracia's ineffective assistance of counsel claims, we cannot now reach them. 25 We find his remaining assignments of error without merit. 26
The sentence of the district court is MODIFIED to impose a three-year term of supervised release, a term which is both the statutory minimum and statutory maximum. As so modified, the judgment of conviction and the sentence imposed is AFFIRMED and the matter is returned to the district court for correction of the judgment and commitment order.
1 United States v. Bernal, 861 F.2d 434 (5th Cir.1988) (quoting United States v. Adams, 634 F.2d 830 (5th Cir.1981), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989)).
2 Id. (citing United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc ), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320, 445 U.S. 971, 100 S.Ct. 1665, 64 L.Ed.2d 249 (1980)).
3 E.g., United States v. Bachynsky, 934 F.2d 1349 (5th Cir.) (en banc ), cert. denied, --- U.S. ----, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991); Bernal, 861 F.2d at 436 (citing United States v. Corbett, 742 F.2d 173 (5th Cir.1984); Dayton).
4 E.g., United States v. Hekimain, 975 F.2d 1098 (5th Cir.1992); Bachynsky (harmless error analysis applies where district court provides "less than letter perfect" treatment of core concern under Fed.R.Crim.P. 11); Dayton.
6 Under 21 U.S.C. §§ 846, 841(b)(1)(C) the district court had to impose a minimum of three years supervised release following any term of incarceration to which it sentenced Gracia. The district court, however, inadvertently stated that "at least two and possibly three years of supervised release" would follow any term of incarceration imposed.
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