U.S. v. Johnson
| Citation | 1 F.3d 296 |
| Decision Date | 26 August 1993 |
| Docket Number | No. 92-8057,92-8057 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony JOHNSON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Michael Anthony Johnson, pro se.
John S. Broude, Gould, Broude & Nelson, Fort Worth, TX (Court-appointed), for defendant-appellant.
Richard L. Durbin, Jr., Asst. U.S. Atty., 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, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DEMOSS, Circuit Judges.
We have taken this case en banc for the "housekeeping" purpose of deciding whether to complete the process we began two years ago with our en banc opinion in United States v. Bachynsky. 1 There, we eliminated the panel's per se reversal of the defendant's conviction for failure of the district court to make reference to or explain supervised release during the plea colloquy. We instead tested the effect of that omission by conducting a "harmless error" examination as authorized by Federal Rule of Criminal Procedure 11's section (h), which was added to that Rule with the 1983 amendments. In so doing Today we acknowledge that in Bachynsky we went only halfway when we approved application of section (h)'s harmless error test to an imperfection in the plea colloquy, all the while continuing to embrace the pre-section (h) rubric of total or partial failures and core or non-core concerns. We now go the remaining "half the distance to the goal" of fully embracing section (h) by relegating that pre-amendment double dichotomy "into the dustbin of [the jurisprudential] history" 3 of this circuit, replacing it entirely with the pure harmless error examination that was intended by adoption of section (h). 4 Henceforth, no failure in the plea colloquy--regardless of whether it might be one of omission or commission, total or partial, core or non-core--will mandate an automatic reversal of a conviction and vacatur of a sentence. Rather, reversal and vacatur will be required when--but only when--the challenged "variance from the procedures required by [Rule 11] ... affect[s] substantial rights" of the defendant. 5 In other words, when an appellant claims that a district court has failed to comply with Rule 11, we shall conduct a straightforward, two-question "harmless error" analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?
however, we failed to repudiate our pre-amendment, jurisprudentially mandated taxonomy exercise of determining whether the plea colloquy error complained of should be categorized as a failure by the court to comply with one or more of the three "core concerns" of Rule 11, 2 and if so whether such failure was total or partial.
We shall conduct our review of each Rule 11 challenge solely on the basis of the record on appeal--principally the transcript of the plea colloquy hearing but also other portions of the record, such as any written plea agreement, the transcript of the sentencing hearing, and the sentence actually imposed. 6 When we review post-plea colloquy sources, however, we shall consider only such information contained therein as is temporally relevant to the voluntary and uncoerced nature of the defendant's guilty plea, and to his knowledge and understanding of the nature of the charges and the consequences of his plea.
Finally, overarching the rule and the review procedure we announce today is our solemn admonition that nothing in this opinion should be construed as condoning even the slightest diminution in the degree of diligence that the district courts of this circuit are expected to devote to complying fully with both the letter and the spirit of Rule 11 in every instance.
Defendant-Appellant Michael Anthony Johnson pleaded guilty to one count of distribution of cocaine within 1,000 feet of a school playground, in violation of 21 U.S.C. Secs. 841(a) and 860(a), and one count of unauthorized [Counsel]: Okay. And you understand that you're looking in the neighborhood of 262 to 327 months, which is 21 years to 27 years, under the Federal Sentencing Guidelines. You understand that, do you not?
acquisition and possession of food stamps, in violation of 7 U.S.C. Sec. 2024(b). During the Rule 11 plea colloquy, 7 the district court informed Johnson of the maximum statutory penalty and supervised release term, 8 but neglected to advise him that 21 U.S.C. Sec. 860(a) carries a mandatory minimum penalty of one year imprisonment. Just before the district court accepted the plea, Johnson's attorney intervened to place his own dialogue with Johnson on the record. 9 After Johnson acknowledged that he had been informed by counsel that Johnson would be subject to a sentence enhancement under U.S.S.G. Sec. 4B1.1 as a career offender, the following exchange took place
Defendant Johnson: Yes, Sir.
[Counsel]: And understanding that and my explaining to you two days ago or three days ago and then again--and then again today, do you still want to proceed with your plea?
Defendant Johnson: Yes, Sir.
[Counsel]: Okay. You understand what you're looking at and you're going into this with your eyes wide open?
Defendant Johnson: Yes. 10
The district court accepted Johnson's plea. After receipt of the Pre-Sentence Report (PSR), the court sentenced Johnson to 210 months imprisonment--over four years less than the shortest term that he had acknowledged (when he entered his plea) he was expecting to receive. 11 Johnson nevertheless appealed his sentence, arguing that the district court's failure to mention the mandatory minimum sentence of one year during the Rule 11 colloquy mandates vacatur, as such an omission could never be harmless error under our precedent. 12 The panel of this court that heard Johnson's appeal recognized that it was bound by United States v. Martirosian 13 and dutifully vacated Johnson's conviction and sentence, remanding the case to allow Johnson to plead anew.
Rule 11 of the Federal Rules of Criminal Procedure provides:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect or any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; ...
.... (h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
This court has long analyzed Rule 11 as addressing three "core concerns": (1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of his plea. 14 Under our extant jurisprudence, a conviction on a plea of guilty is reversible ipso facto if, during the plea colloquy with the defendant, the trial court wholly or entirely "fail[s] to address one or more of the core requirements of Rule 11." 15 Thus, we have said that automatic reversal required two elements: (1) a total failure to address (2) a core concern. In contrast, when a trial court has addressed a core concern inadequately or in a "less than letter perfect manner," or when a non-core concern was left totally unaddressed, we have reviewed the plea colloquy "under the harmless error standard of Rule 11(h) to determine whether the court's imperfection affected substantial rights of the defendant." 16
Until now, however, upon finding that a district court had made an error in a Rule 11 colloquy, our initial inquiry was: Are we faced with a total failure to address a core concern, which will mandate vacatur, or only with some lesser error or omission, which we review for harmless error under section (h) of Rule 11? In Bachynsky, for instance, the district court "informed [the defendant] of the nature of the charges against him; stated the elements of each of the crimes to which he was pleading guilty; stated the maximum statutory penalty for each crime to which he was pleading guilty; and then asked if he understood the elements and penalties associated with each count." The trial court, however, neglected "personally [to] advise Dr. Bachynsky that his sentence could or would include a period of supervised release, or explain to Dr. Bachynsky the effect of supervised release." 17 That error was reviewed for harmlessness, as the imperfection involved "only one component [supervised release] of one element [the maximum penalty for which the defendant was liable] of one core concern [whether the defendant understands the consequences of his plea]." 18
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