U.S.A. v. Harrison, Docket No. 99-1642

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1642
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. ROBERT HARRISON, also known as Sealed Defendant #1, also known as Bobby, ROBERT LEWIS, also known as Sealed Defendant #2, also known as Charles, LESLIE EDWARDS, also known as Sealed Defendant #3, also known as Les, CARL DAWSON, also known as Sealed Defendant #5, REGINALD MILLER, ABRAHAM WHALEY and JESSE C. FULTON, Defendants, LOUIS BIRDEN, also known as Sealed Defendant #4, also known as Bug, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 289

241 F.3d 289 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. ROBERT HARRISON, also known as Sealed Defendant #1, also known as Bobby, ROBERT LEWIS, also known as Sealed Defendant #2, also known as Charles, LESLIE EDWARDS, also known as Sealed Defendant #3, also known as Les, CARL DAWSON, also known as Sealed Defendant #5, REGINALD MILLER, ABRAHAM WHALEY and JESSE C. FULTON, Defendants, LOUIS BIRDEN, also known as Sealed Defendant #4, also known as Bug, Defendant-Appellant.

Docket No. 99-1642

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: August 7, 2000

Decided: March 05, 2001

Appeal from judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge) following defendant Louis Birden's plea of guilty to cocaine distribution charges, in violation of 21 U.S.C. § 841(a)(1). During the plea colloquy, the district court erred in stating the mandatory minimum sentence that Birden faced. Because this error combined with other indicia of confusion surrounding Birden's plea, we find that the shortcoming under Fed. R. Crim. P. 11 was not harmless. Accordingly, we vacate Birden's judgment of conviction and remand for further proceedings in the district court.

Vacated and remanded.

J. SCOTT PORTER, Syracuse, N.Y., for Defendant-Appellant Louis Birden.

ELIZABETH S. RIKER, Assistant United States Attorney, (Daniel J. French, United States Attorney, John G. Duncan, Assistant United States Attorney, on the brief) Syracuse, N.Y., for Appellee.

Before: CALABRESI, CABRANES, and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Louis Birden appeals the October 28, 1999, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge) sentencing him principally to 57 months imprisonment after he pleaded guilty to distributing crack and aiding and abetting the distribution of crack. This case presents us with another example of our need to require strict adherence to the provisions of Fed. R. Crim. P. 11. The district court - and the prosecutor and defense attorney, for that matter - made an error during Birden's plea colloquy when it stated that Birden faced a mandatory minimum sentence of imprisonment when none in fact applied. By the time of sentencing, however, the court and prosecutor discovered the error and Birden in fact received a sentence three months less than that of which the court had advised him. While in other circumstances the court's error in overstating the applicable minimum sentence may have been harmless, that is not the case before us. Here, other errors and circumstances combine to create a critical mass of doubt regarding Birden's mental state. We cannot be assured on the record before us that Birden's guilty plea was knowing and voluntary. Because we do not take lightly any defendant's waiver of important constitutional rights, we vacate the conviction and remand to the district court for further proceedings.

BACKGROUND

The grand jury returned a 15-count superseding indictment on April 1, 1999, charging Birden and seven co-defendants in a crack distribution conspiracy. On June 15, 1999, Birden pleaded guilty pursuant to a plea agreement to Counts 2 and 10 of the indictment. Count 2 charged Birden with distributing crack on October 15, 1998, and Count 10 charged Birden with aiding and abetting the distribution of crack on December 18, 1998, both in violation of 21 U.S.C. § 841(a)(1). During Birden's plea colloquy, the prosecutor described the factual basis for the plea. According to the government, Birden sold 2.61 grams of crack for $250 to an undercover agent on October 15, 1998. Also according to the government, Birden and two co-defendants on December 18, 1998, discussed the purchase of an "eight ball," or eighth of an ounce, of crack with an undercover police officer in an apartment, and then Birden and a co-defendant went to the rear of the apartment and returned with 2.85 grams of crack.

Before accepting Birden's guilty plea, the district court pursuant to Rule 11 informed defendant of the rights he was giving up by pleading guilty and the penalties that the court could impose. Of particular importance to this appeal is Judge Scullin's discussion of the potential punishment that Birden could face as a result of his guilty plea. Judge Scullin stated that Birden could be imprisoned up to 40 years "and there would be a minimal term of imprisonment of five years." The plea agreement that Birden signed stated the same consequences. Judge Scullin also told Birden that "So as you enter your plea here today, I cannot tell you what your sentence will be. The only thing you can be assured of is that your sentence will not be greater than that called for or allowed by statute... the statutory maximums...." Birden stated that he understood the charges against him, and the district court found that Birden entered the guilty plea knowingly and voluntarily. However, eight days later in a letter to the court dated June 23, 1999, Birden requested a different attorney and "removal of [his] plea because of duress." Birden stated in the letter that he had been "ignorantly coerced into signing a plea agreement, that [he had] no knowledge of its contents." The district court record reflects no response to Birden's letter.

At the time Birden entered his guilty plea, the court, prosecutor, and defense counsel all were under the mistaken impression that a five-year mandatory minimum sentence applied because the combined weight of the crack charged in count 2 and count 10 was 5.46 grams. Pursuant to 21 U.S.C. § 841(b)(1)(B)(iii), a mandatory minimum sentence of five years applies to violations involving five grams or more of cocaine base, or crack. However, the five-year mandatory minimum sentence did not apply to Birden because the statute did not call for aggregation of the drug quantities in the two substantive counts. See United States v. Winston, 37 F.3d 235, 240 (6th Cir. 1994). In other words, the weight of cocaine base involved in the two transactions was not combined for purposes of calculating a mandatory minimum, although the combined weights were relevant under U.S.S.G. § 2D1.1 to establish a base offense level. The error came to light when the probation office prepared a Pre-Sentence Report ("PSR") on Birden's behalf. According to Birden's PSR, the relevant Sentencing Guidelines range for imprisonment was 57 to 71 months.

Judge Scullin sentenced Birden on October 12, 1999. During the sentencing, the probation officer who prepared the PSR again stated that the five-year mandatory minimum sentence did not apply to Birden. Birden's lawyer was under the impression even after reading the PSR that the mandatory minimum of 60 months imprisonment applied, and as a result the attorney did not pursue downward departure motions on Birden's behalf. After the court explained the error to Birden's lawyer, defense counsel merely asked "the Court to impose the lowest possible sentence that would be applicable to my client in this case." Also during the sentencing, Birden complained that his attorney had misled him regarding the nature of cooperation that the government required before making a downward departure motion pursuant to U.S.S.G. 5K1.1 for substantial assistance to authorities. Judge Scullin imposed a sentence of 57 months imprisonment, three years supervised release, and $200 special assessment. Birden now appeals his conviction and asks the court to vacate his guilty plea.¹

DISCUSSION

I. Alleged violation of Rule 11(c)(1)

Birden argues that the district court violated Rule 11(c)(1), which requires the court accepting a guilty plea to advise defendant of his potential punishment. Birden also argues that Judge Scullin's error was not harmless because "[a] defendant's awareness of the correct penalties serves to ensure that the guilty plea was made voluntarily and with knowledge of the alternatives." The government concedes that the district court misinformed Birden about the minimum sentence and that the error violated Rule 11(c)(1).² The government contends, however, that the mistake was harmless because it had no practical effect on Birden's decision to plead guilty.

Our recent opinion in United States v. Andrades, 169 F.3d 131, 133 (2d Cir. 1999), describes the parameters of Rule 11:

Rule 11 sets forth requirements for a plea allocution and "is designed to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative courses of action open to the defendant." United States v. Renaud, 999 F.2d 622, 624 (2d Cir. 1993) (citations and quotations omitted). See also United States v. Westcott, 159 F.3d 107, 112 (2d Cir. 1998), petition for cert. filed, 119 S. Ct. 831, 67 U.S.L.W. 3435 (1999). We "generally require sentencing courts to adhere strictly to the specific provisions of Rule 11." Renaud, 999 F.2d at 624. The minimum standard of information that a district court must personally impart to defendant is contained in Rule 11, but the rule also provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed. R. Crim. P 11(h). Therefore, we will not overturn guilty pleas "when there has been a minor and technical violation of Rule 11 which amounts to harmless error." Renaud, 999 F.2d at 624 (quotation and citation omitted). Harmless error encompasses "such minor errors as a modest understatement of the maximum penalty, where the penalty actually imposed did not exceed the maximum as erroneously represented by the court." Id. at 624-25 (citations omitted).

We therefore strike a balance between requiring strict adherence to the provisions of Rule 11 and disregarding variances from the rule that do not affect defendant's substantial rights. In some cases, a combination of circumstances "tips the scale" in favor of vacating de...