U.S.A. v. Hernandez-Wilson, HERNANDEZ-WILSO

• Decision Date: 08 June 1999
• Docket Number: No. 98-1212,HERNANDEZ-WILSO,D,98-1212
• Citation: 186 F.3d 1
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ROBERT ALIefendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

186 F.3d 1 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ROBERT ALI HERNANDEZ-WILSON, Defendant-Appellant.

No. 98-1212.

United States Court of Appeals for the First Circuit.

Heard June 8, 1999.

Decided July 23, 1999.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO.

Alexander Zeno for appellant.

Timothy Faerber, with whom Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Before Boudin, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

Robert Ali Hernandez-Wilson challenges the validity of his guilty plea to a charge of conspiracy to distribute heroin in violation of 21 U.S.C. § 846. The record reveals that the guilty plea accepted by the district court was the product of confusion on the part of defense counsel, the prosecutor, and the court. Under these circumstances, we conclude that Hernandez reasonably misunderstood the consequences of his guilty plea. Therefore, we must vacate the conviction and sentence, set aside the guilty plea, and remand to the district court for further proceedings. See United States v. Gray, 63 F.3d 57, 58 (1st Cir. 1995).

I.

In April 1997, Hernandez was indicted on four counts related to his participation in a conspiracy to distribute heroin. Hernandez originally entered a plea of not guilty, but on July 18, 1997 a change-of-plea hearing (Rule 11 hearing) was held before the district court. See Fed. R. Crim. P. 11(c) (requiring that before a guilty plea can be accepted the district court must "address the defendant personally in open court" to ensure that the plea is a knowing and voluntary waiver of the defendant's constitutional rights). In part based on the government's promise to recommend that he be sentenced under 18 U.S.C. § 3553(f), Hernandez changed his plea to guilty on Count One of the indictment, admitting to a violation of 18 U.S.C. § 846 (conspiracy to distribute heroin).¹

The sentencing provision that was central to the plea agreement, 18 U.S.C. § 3553(f), commonly referred to in sentencing parlance as the "safety valve," allows courts to sentence defendants who have little or no prior criminal history "without regard to any statutory minimum sentence" under certain circumstances. At the time of the July 18, 1997 Rule 11 hearing, Hernandez's defense counsel, the Assistant United States Attorney prosecuting the case, and the district court were all under the impression that Hernandez was preliminarily eligible for sentencing under the safety valve, meaning that his prison sentence could have been as low as 30 months. On the other hand, if Hernandez did not receive the benefit of the safety valve provision, the crime to which he was pleading guilty carried a mandatory minimum sentence of 60 months.

We can best explain the handling of the "safety valve" provision at Hernandez's Rule 11 hearing on July 18, 1997 by quoting extensively from the hearing:

The Court: You have a plea agreement which I have examined. The plea agreement says that you are pleading guilty to this drug conspiracy count. It also spells out the penalties that we discussed earlier on in this colloquy. It also says here that you're going to try to comply with the safety valve provisions of Guideline section 5(c)(1).2. And if you do so then I will be able to sentence you without making reference to the statutory mandatory minimum term of imprisonment. Do you understand that?

The Defendant: I don't understand. I don't understand. I didn't understand that part.

The Court: Have you heard about the safety valve provisions?

Defense Counsel: You Honor, if I may? His big concern is that you stated that there is a statutory minimum of five years. And all the time he has been considering level nineteen which is thirty [months].

The Court: Let me clarify that confusion that you have. When I mentioned the five years statutory minimum term of imprisonment I mentioned it because I have an obligation to tell you about that. Do you understand that?

The Defendant: I understand.

The Court: Also, I have an obligation [to tell you] about the forty years which is the maximum. Do you understand that?

The Defendant: I do.

The Court: But I also have an obligation to tell you that you can escape that and be sentenced without reference to that mandatory minimum if you comply with the safety valve provision of section 5(c)(1).2. Do you understand that?

The Defendant: I do.

The Court: That requires that you sit down with an agent, tell them everything you know about this case. And if you have no criminal record, if you have no criminal record and you were not involved with firearms and things of that sort, then I can give you the benefit of sentencing you without reference to the statutory minimum. For example, to a level nineteen. Do you understand that?

The Defendant: I understand.

* * *

The Court: And if you have no criminal history your Guideline imprisonment range with a level nineteen will be thirty to thirty-seven months. However, if you do not comply with the safety valve obligations that you have, that becomes a sixty month sentence. Do you understand that? So it is in your best interest to comply.

The Defendant: Well, okay. What I don't understand is I just signed for thirty months. And what I don't understand is if after that they can give me sixty months. I don't understand that.

The Court: Let me explain to you. [Y]ou're not signing for thirty months. You are expecting to be sentenced to thirty months. And I hope that that will be the case. Do you understand? But you still have to meet with an agent, and you have to comply with the safety valve provision. You will have to sit down with this agent and you will have to tell him this is what happened. . . . The government will check that you have no criminal record. Which you don't. And then I will give you [the] benefits of the safety valve. Do you understand that?

The Defendant: I understand.

* * *

The Court: Okay. The government is going to recommend a thirty month sentence. You understand that?

The Defendant: Ah-ha.

The Court: And the government expects that you will comply with the safety valve provision. You understand?

The Defendant: Right now they will offer the same thing to my codefendants, right?

The Court: Let me say this. Let me see if I can - let me open the book here. For you to qualify for the safety valve you have to comply with five things. Number one: No criminal record. Do you have a criminal record?

Defense Counsel: No, your Honor. There is a Law fifty-four charges, but that's not - -

The Court: Let me change that. You cannot have more than one point of criminal record. It seems to me that you're okay in that sense.

(emphasis added).

In fact, as discussed more fully below, at the time of the Rule 11 hearing Hernandez was ineligible for the safety valve. In order to qualify for sentencing under the safety valve, a defendant may "not have more than 1 criminal history point." See 18 U.S.C. § 3553(f)(1).² All the participants (i.e., the prosecutor, the court, defense counsel and Hernandez) were aware that Hernandez had one prior criminal conviction at the time of the plea hearing. In November of 1995, Hernandez pled guilty to one count of simple assault in violation of Law 54 (Puerto Rico's domestic violence statute). On January 9, 1996, Hernandez was sentenced to eighteen (18) months probation pursuant to his conviction under Law 54. All of the participants correctly understood that this conviction gave Hernandez only one criminal history point. However, either they did not know or they did not appreciate the significance of the fact that Hernandez had committed the offense for which he was pleading guilty while on probation for the Puerto Rico Law 54 conviction. Under the sentencing guidelines, this fact added two more points to Hernandez's criminal history score, thereby disqualifying him from the benefits of the safety valve. See U.S.S.G. § 4A1.1(d) ("Add 2 points [to the defendant's criminal history score] if the defendant committed the instant offense while under any criminal justice sentence, including probation . . . ."); see also 18 U.S.C. § 3553(f) (restricting sentencing under the safety valve to defendants that "do[] not have more than 1 criminal history point"). Therefore, at the time Hernandez negotiated his plea bargain with the government and at the time he entered his plea of guilty, there was no possibility that Hernandez could be sentenced to anything less than 60 months, the statutory mandatory minimum sentence for the crime to which Hernandez was pleading guilty.³

On October 17, 1997, Hernandez's former defense counsel moved for leave to withdraw as counsel for the defendant citing irreconcilable differences. On October 19, 1997, Hernandez moved pro se for dismissal of his counsel. In addition, Hernandez requested (1) a continuance of the sentencing hearing; (2) appointment of new counsel; and (3) a hearing concerning whether Hernandez had been adequately counseled as to the terms and conditions of the plea agreement. By margin order, the district court appointed new counsel to represent Hernandez and continued the sentencing hearing until January 1998. By the time of sentencing in January 1998, Hernandez was represented by different counsel. Hernandez's new counsel did not renew or otherwise pursue Hernandez's motion for a hearing on the validity of the guilty plea.

The district court held a sentencing hearing on January 22, 1998. Pursuant to the pre-sentence report, Hernandez was assigned a criminal history score of three. At sentencing, Hernandez exhibited a lack of understanding about the reasons for the unavailability of a thirty month sentence. The court responded that "we have already discussed this; that you were -- that when I took your plea, I do think that it...