U.S. v. Roberts, No. 92-16660

• Decision Date: 13 August 1993
• Docket Number: No. 92-16660
• Citation: 5 F.3d 365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William A. ROBERTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 365

5 F.3d 365

UNITED STATES of America, Plaintiff-Appellee, v. William A. ROBERTS, Defendant-Appellant.

No. 92-16660.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 13, 1993. ^*

Decided Sept. 16, 1993.

William A. Roberts, pro se.

Bradford C. Lewis, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

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

Before SNEED, POOLE, and TROTT, Circuit Judges.

SNEED, Circuit Judge:

William Roberts ("Roberts") appeals pro se the denial of his 28 U.S.C. Sec. 2255 motion. The primary issue is whether the district court violated Fed.R.Crim.P. 11 when it failed to advise Roberts of a term of supervised release at his plea hearing. We hold it did and vacate Roberts's sentence and remand to the district court with instructions.

I. FACTS AND PRIOR PROCEEDINGS

Roberts owned Gemini Chemical, a chemical supply company, and was involved in buying and selling large quantities of precursor chemicals, as well as manufacturing and distributing the finished methamphetamine. On November 21, 1988, pursuant to a plea agreement, Roberts pled guilty to 21 U.S.C. Sec. 846, conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. Sec. 841(a). The charged conspiracy ran from July 23, 1987 to June 6, 1988. The plea agreement said the government would recommend that the court reduce Roberts's sentence by half if he cooperated with the government against others involved in manufacturing and distributing methamphetamine. The plea agreement also said if Roberts disobeyed the law--to be determined by a "probable cause" standard of proof--the agreement would be void.

At the plea hearing, the judge said Roberts would be sentenced under the "old law" because at that time the Ninth Circuit had held the Sentencing Guidelines to be unconstitutional and the Supreme Court had not yet decided the issue. The judge told Roberts the maximum penalty was twenty years. He did not say anything about a term of supervised release.

On February 21, 1989, Roberts was sentenced. By this time, the Supreme Court had decided Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), which held the Sentencing Guidelines were constitutional, and Roberts was sentenced under the Guidelines. The report set forth a range of thirty years to life pursuant to the Sentencing Guidelines, so, under U.S.S.G. Sec. 5G1.1(a), Roberts was sentenced to the statutory maximum of twenty years. The judge also imposed a mandatory three year term of supervised release under the Guidelines. United States Sentencing Commission, Guidelines Manual, Sec. 5D3.1(a) (Oct. 1988). The Assistant U.S. Attorney ("AUSA") told the judge the government would ask that Roberts's sentence be reduced pursuant to the plea agreement "at the end of his cooperation."

In October 1988, Roberts began cooperating with state officers by making undercover purchases and sales of methamphetamine precursor chemicals. Beginning in March 1989, the agents began to receive information from informants and Roberts's employees that he was continuing to buy and sell precursor chemicals and methamphetamine for his own profit without the government's knowledge. Based on the information, the AUSA decided Roberts had broken the law and breached the agreement, and she did not move the court for a reduced sentence.

Roberts filed several motions challenging his conviction, including a motion to vacate pursuant to 28 U.S.C. Sec. 2255. The district court denied Roberts's Sec. 2255 motion, his motion for an evidentiary hearing, and his

                other motions. 1  He filed a timely notice of appeal
                

II. JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction under 18 U.S.C. Sec. 3231 and 28 U.S.C. Sec. 2255. We have jurisdiction under 28 U.S.C. Sec. 2255 and 28 U.S.C. Sec. 1291. The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc). Findings of fact are reviewed for clear error. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).

III. DISCUSSION

A. Violation of Fed.R.Crim.P. 11.

The voluntariness of a guilty plea is subject to de novo review. United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988). Before accepting a guilty plea, the lower court judge must speak personally to the defendant to ensure his plea is voluntary. Fed.R.Crim.P. 11(d). Roberts argues his guilty plea was not voluntary because the court: 1) told him he would be sentenced under the "old law," not the Sentencing Guidelines, 2) failed to tell him he would not be eligible for parole, and 3) gave him a potentially longer sentence than the one he was advised of at his plea hearing.

1. The judge was not obligated to sentence him under pre-Guidelines law.

The first contention fails. The Sentencing Guidelines apply retroactively to guilty pleas, such as this one, which were entered in the "window period" between our decision suspending the Guidelines and the Supreme Court's holding in Mistretta that the Guidelines were constitutional. United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir.1991). The Guidelines went into effect on November 11, 1987 and apply to conspiracies, such as this one, that ended after that date. United States v. Kohl, 972 F.2d 294, 298 (9th Cir.1992). The version of Rule 11 in effect at Roberts's November 21, 1988 plea hearing did not obligate the court to tell Roberts about the Sentencing Guidelines. Ramos, 923 F.2d at 1357. That the judge said he would be sentenced under the "old law" had no effect. United States v. Carey, 884 F.2d 547, 548 (11th Cir.1989), cert. denied, 494 U.S. 1067, 110 S.Ct. 1786, 108 L.Ed.2d 787 (1990).

2. Ineligibility for parole.

The judge did not violate Rule 11 by failing to advise Roberts that he would be ineligible for parole. Rule 11 does not require the trial court to notify a defendant of parole eligibility before accepting his guilty plea. United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir.1988) (per curiam).

3. Failure to discuss supervised release. ²

Rule 11 requires that the judge advise the defendant of the "maximum possible penalty" before accepting his guilty plea. Fed.R.Crim.P. 11(c)(1). Here, the judge violated Rule 11 because Roberts received a potentially longer sentence than the maximum he was advised of. At his November 21, 1988 plea hearing, the judge told Roberts that he faced a statutory maximum sentence of twenty years, a $1 million fine, and a mandatory penalty assessment of $50. 21 U.S.C. Sec. 841(b)(1)(C). The judge mentioned nothing about supervised release. At sentencing, Roberts received the twenty year maximum plus a three year term of supervised release pursuant to the Sentencing Guidelines. C.R. 35 at 20; U.S.S.G. Secs. 5D3.1(a), 5D3.2(b)(1). If Roberts violates the conditions of his supervised release, the court may revoke his supervised release and send him back to prison for up to three more years. 18 U.S.C. Sec. 3583(e)(3). Thus, Roberts's maximum sentence is at least twenty-three years, not twenty years. Because of the term of supervised release, Roberts received a potentially longer sentence than he was apprised of at his plea hearing.

If the defendant receives a potentially longer sentence than the maximum he was told, the failure to inform him of the supervised release term affects his "substantial rights" and is not harmless error. Fed.R.Crim.P. 11(h); Rodriguera v. United States, 954 F.2d 1465, 1469 (9th Cir.1992) (no harmless error where defendant was advised maximum was forty years but received eight years in prison plus ten years supervised release which could potentially be extended to life); United States v. Sanclemente-Bejarano, 861 F.2d 206, 209-10 (9th Cir.1988) (harmless error where defendant was advised maximum sentence was life imprisonment and received fifteen year sentence and five year term of supervised release); United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987) (not harmless error where defendant was advised maximum was twenty-one years and he received ten year term and ten years of special parole because liberty could be restricted for well over twenty-one years).

The government argues that the version of Rule 11 in effect at the time of Roberts's plea hearing did not require the judge to discuss supervised release under the Guidelines. This is probably true. ³ The government further contends the judge was not obligated to discuss statutory supervised release. This is also true. ⁴ However, Rule 11 still mandates that the judge tell the defendant the "maximum possible penalty." The defendant should not receive a sentence longer than the one discussed at the plea hearing.

The government also argues that the plea agreement mentioned a term of supervised release, so Roberts's plea was voluntary, and any failure to mention it in open court was harmless error. However, the plea agreement simply listed the statutory maximum penalties for all the counts in the indictment. Supervised release was mentioned as part of the maximum statutory penalty for violating 21 U.S.C. Sec. 841(a)(1)--a crime that Roberts did not plead guilty to.

In fact, we take the Rule 11 mandate quite literally. In Sanclemente-Bejarano, 861 F.2d at 208, the judge at the plea hearing asked the defense counsel if there was a supervised release term and she said "Yes.... According to the new [law], there should be five years supervised release. At least five years in addition to the term of imprisonment, if there is no prior conviction." Id. at 208. We held this exchange did not satisfy Rule 11 because "[t]he court did not inform [defendant] of the provision, nor did it ask him if he understood the meaning of supervised release or its effect." Id. at 210.

Here, the judge failed to say anything at all about the supervised release term at the plea hearing. The Rule 11 violation arises not from the fault of...