U.S. v. Graibe, 90-50416

• Decision Date: 09 October 1991
• Docket Number: No. 90-50416,90-50416
• Citation: 946 F.2d 1428
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacobo GRAIBE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1428

946 F.2d 1428

UNITED STATES of America, Plaintiff-Appellee, v. Jacobo GRAIBE, Defendant-Appellant.

No. 90-50416.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 1, 1991.

Decided Oct. 9, 1991.

Stan Hansen, Beverly Hills, Cal., for defendant-appellant.

John S. Gordon, Asst. U.S. Atty., Deputy Chief, Major Narcotics Section, Los Angeles, Cal., for plaintiff-appellee.

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

Before CHAMBERS, SCHROEDER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant Jacobo Graibe appeals his conviction, entered upon a plea of guilty, and sentence for distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Graibe contends that his conviction is invalid because the district court failed to comply with Rule 11(e)(2) of the Federal Rules of Criminal Procedure by not informing him that he could not withdraw his guilty plea in the event that the court refused to accept the government's sentencing recommendation. ¹ We agree and reverse his conviction.

I.

On February 20, 1990, Jacobo Graibe and two co-defendants were charged in a three count indictment with conspiring to distribute more than five kilograms of cocaine (count one), attempting to distribute nine kilograms of cocaine (count two), and distributing 14,990 grams of cocaine (count three), in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to a written plea agreement between Graibe and the government, Graibe agreed to plead guilty to count three of the indictment. In return, the government agreed to move for dismissal of counts one and two at the time of sentencing and to recommend the applicable statutory minimum mandatory term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The prosecution also stated that it would recommend that only the amount of cocaine charged in count three be considered in determining defendant's base offense level and promised not to seek any upward adjustment to defendant's base offense level. The parties calculated that Graibe would be placed in criminal history category II, because of his 1989 conviction for money laundering and his commission of the instant offense while on probation, and would have an offense level of 30 under the Federal Sentencing Guidelines. Given a criminal history category of II and offense level of 30, the plea agreement set forth a Guidelines sentencing range of 108 to 135 months, which would permit for the recommended 120 month sentence.

At the plea hearing, the district court advised Graibe in regard to his rights relating to, and the effects of, his guilty plea. The court specifically stated that the recommendations in the plea agreement would not bind it in determining the appropriate sentence to impose. The court also advised the defendant that the government's recommendation would have to be made through the Probation Office because the court did not accept recommendations directly from the prosecution. However, the district court made no mention of the fact that under Rule 11(e)(2) of the Federal Rules of Criminal Procedure Graibe would not have the right to withdraw his plea of guilty if the court decided at the time of sentencing to reject the government's sentencing recommendation.

On May 31, 1990, the Probation Office released the presentence report for examination and comment by the parties. The In response to the presentence report, Graibe filed a memorandum setting forth his position with respect to the sentencing factors. He contended, inter alia, that his 1980 misdemeanor trespass conviction, entered upon a plea of nolo contendere, was constitutionally invalid because the municipal court failed to advise him of several constitutional rights. Therefore, he argued, the 1980 conviction should not be counted under the Sentencing Guidelines. With respect to the presentence report's recommendation that the district court enhance his offense level by two points for his leadership role in the offense, Graibe asserted that the district court should reject the presentence report's recommendation in light of the parties' plea agreement. Graibe attached as an exhibit to his memorandum a stipulation entered into by his counsel and the government's counsel. The stipulation provided that the district court could properly exclude defendant's 1980 trespassing conviction from his criminal history category and could reject the presentence report's recommendation that two points be added to his offense level for his leadership role.

                report stated that Graibe had a criminal history category of III rather than II because his criminal history included an additional point for a 1980 state misdemeanor trespassing conviction, which apparently had not previously been disclosed to the prosecution.   The report also recommended a two point enhancement of appellant's offense level for his leadership role in the offense.   In accordance with its determination that Graibe had a total offense level of 32 and criminal history category of III, the report set forth a Guidelines sentencing range of 151 to 188 months
                

On July 16, 1990, Graibe appeared in the district court for sentencing. The court rejected Graibe's arguments relating to his 1980 trespassing conviction and leadership role in the offense. Notwithstanding the plea agreement and the government's subsequent stipulation regarding the sentencing factors, both of which contained a recommendation for a sentence of 120 months, the district court sentenced Graibe to 180 months in prison.

II.

Graibe claims that his conviction is invalid as a matter of law under Fed.R.Crim.P. 11(e)(2). Accordingly, we review the district court's judgment de novo. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988) (citing United States v. Whitney, 785 F.2d 824, 825 (9th Cir.), as amended, 838 F.2d 404 (1986)).

With respect to plea agreements that are not binding upon the court, Rule 11(e)(2) provides that "the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea." Fed.R.Crim.P. 11(e)(2). The government concedes that the district court erred by failing to comply with this requirement. It contends, however, that the district court's noncompliance constitutes harmless error under Rule 11(h). We disagree.

Rule 11(h) provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." However, as the Advisory Committee notes to Rule 11(h) provide, "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." Fed.R.Crim.P. 11(h), Notes of Advisory Committee to the 1983 Amendment. Indeed, Rule 11(h) does not alter a district judge's duty to "engage in careful and thorough compliance with the rule's requirements, and violations which may be classified as 'harmless error,' on direct appeal are limited." United States v. Jaramillo-Suarez, 857 F.2d 1368, 1371 (9th Cir.1988) (citation omitted). Thus, the principal question we must address in this case is whether a district court's failure to advise a defendant that he cannot withdraw his guilty plea even if the court does not follow the recommendation in the plea agreement "affects substantial rights." Our first step in answering that question must be to examine the purpose and effect of Rule 11(e)(2).

III.

In order to satisfy the due process requirements of the Fifth Amendment, a defendant's guilty plea must be voluntary and intelligent. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986) (citation omitted). As the Supreme Court has observed, the acceptance of a guilty plea requires the "utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). As one commentator noted, "[i]f the defendant does not understand the scope of the prosecutorial promises, he cannot properly evaluate the risks inherent in the agreement." D. Kaplan, Where Promises End: Prosecutorial Adherence to Sentence Recommendation Commitments in Plea Bargains, 52 U.Chi.L.Rev. 751, 769 (1985). An accused's plea of guilty can be voluntary only if he is "fully aware of the direct consequences" of his plea. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970); see also McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). It is this informed voluntariness that Rule 11(e)(2) is designed to ensure.

A defendant's choice between entering into a plea agreement with the government or proceeding to trial rests upon his calculation of the relative risks and benefits of each option. The degree of risk in accepting a plea agreement that specifies a sentence recommendation is directly related to the degree of discretion afforded a trial court in imposing a sentence greater than that settled upon by the parties. A defendant will undoubtedly have more concerns about accepting a plea agreement if the trial court has the discretion to bind him irrevocably to a higher sentence. Cf. Brady v. United States, 397 U.S. 742, 756, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970) ("Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted.")

Graibe entered into the type of agreement specified in Fed.R.Crim.P. 11(e)(1)(B), a "type (B)" agreement, which permits the prosecution to make a sentencing recommendation, or not to challenge the defendant's request for a particular sentence, with the understanding that such a recommendation...