U.S. v. Scott

• Decision Date: 22 March 1993
• Docket Number: No. 92-7111,92-7111
• Citation: 987 F.2d 261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charlie W. SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 261

987 F.2d 261

UNITED STATES of America, Plaintiff-Appellee, v. Charlie W. SCOTT, Defendant-Appellant.

No. 92-7111.

United States Court of Appeals Fifth Circuit.

March 22, 1993.

Julie Ann Epps, Jackson, MS (court-appointed), for defendant-appellant.

Richard Starrett, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for plaintiff-appellee.

Appeal from the United States District Court For the Southern District of Mississippi.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Charlie Scott, appeals the district court's denial of his motion to vacate his sentence under 28 U.S.C. § 2255 (1988). Scott claims inter alia that the district court violated Fed.R.Crim.P. 11 by failing to apprise him of the direct consequences of his guilty plea. Scott is also before this Court on direct appeal, arguing that he was convicted of merged and lesser included offenses. We agree with Scott's Rule 11 argument, and therefore vacate his conviction and remand so that he may be given the opportunity to replead. We also agree with Scott's contentions regarding merged and lesser included offenses.

I

Scott was indicted under counts one, five, seven, fourteen, and sixteen of an indictment. Count one charged that Scott conspired with others to distribute, and to possess with intent to distribute crack, in violation of 21 U.S.C. § 841(a)(1) (1988). Counts five and seven both charged possession with intent to distribute cocaine base, also known as crack, in violation of section 841(a)(1). Count fourteen alleged that Scott distributed crack within 1,000 feet of a school, in violation of 21 U.S.C. § 845a (1988). Count sixteen alleged possession with intent to distribute crack within 1,000 feet of a school, in violation of section 845a.

The district court conducted a hearing at which Scott entered a plea of guilty. The district court accepted Scott's plea, and he was convicted on all five counts. The district court initially sentenced Scott to 240 months imprisonment, but later reduced Scott's sentence to the guideline minimum of 188 months at the government's request.

No direct appeal was filed. Instead Scott filed two motions for collateral relief under 28 U.S.C. § 2255 (1988). Scott claimed that he was not correctly apprised of the consequences of his plea. The district court denied both motions, and Scott appealed. We vacated and remanded for further findings of fact and conclusions of law. ¹ On remand the district court found that Scott "was fully advised of the consequences of pleading guilty," Record on Appeal, vol. I, at 114, ² and that Scott's Rule 11 claim was without merit. Id. at 116. The district court denied relief under section 2255, but permitted Scott to file a direct appeal from his conviction. See id. at 117.

Scott appeals the district court's denial of section 2255 relief, arguing that his conviction must be vacated because the district court failed to apprise him correctly of the direct consequences of his plea, in violation of Fed.R.Crim.P. 11. Scott also proceeds on direct appeal from his conviction, claiming that he was improperly convicted under both counts five and fourteen of the indictment because the offense charged in count five merged into the offense charged in count fourteen; and that he was improperly convicted under both counts seven and sixteen, because count seven charged a lesser included offense of the offense alleged in count sixteen. ³

II

A

Scott argues, in his appeal from the denial of section 2255 relief, that his conviction must be vacated, because the district court violated Fed.R.Crim.P. 11(c)(1) by accepting his guilty plea without first properly admonishing him as to the consequences of his plea. Scott argues that the district court (1) incorrectly stated the minimum period of incarceration and the maximum fine to which he would be susceptible if he pleaded guilty; (2) failed to inform him of the maximum possible term of supervised release; and (3) failed to explain the effect of supervised release.

At the plea hearing, the following colloquy took place:

THE COURT: It's my duty to explain to you the nature of the charges contained in the indictment ... as well as the maximum sentences which could be imposed upon you if you enter pleas of guilty to these particular counts....

* * * * * *

[THE COURT:] The ... maximum sentences to which you ... would be subject if the Court imposed the maximum sentence ... would be as follows: ... Mr. Scott, not less than 20 years nor more than life with a 4 million-dollar fine.

The supervised release apply [sic] in that instance also?

MR. STARRETT [prosecutor]: It does, Your Honor.

THE COURT: And supervised release.

In addition the Court would be required to impose ... a 50-dollar assessment for each count to which you enter a plea of guilty.

Record on Appeal, vol. II, at 14, 21-22. The district court also informed Scott that he might be required to pay restitution to his victims; that he would be sentenced under the federal sentencing guidelines, although the district court could depart from the guidelines; and that he would not be released from prison on parole.

The district court's factual finding that Scott was fully advised of the consequences of pleading guilty is reviewed for clear error. See United States v. Casiano, 929 F.2d 1046, 1051 (5th Cir.1991) (holding that, in reviewing denial of a section 2255 motion, the district court's findings of fact must be accepted unless clearly erroneous) (citing Humphrey v. Lynaugh, 861 F.2d 875, 876 (5th Cir.1988), cert. denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989)); see also United States v. Dayton, 604 F.2d 931, 940 and n. 14 (5th Cir.1979) (en banc) (holding that district court fact findings regarding compliance with Rule 11 are reviewable for clear error), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Findings of fact are clearly erroneous when the appellate court, upon a review of the entire record, is "left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)); United States v. Menesses, 962 F.2d 420, 428 (5th Cir.1992). The district court's conclusion that Rule 11 was satisfied in all respects is a conclusion of law, and is therefore reviewable de novo. See Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th Cir.) ("Questions of law ... are reviewed de novo."), cert. denied, --- U.S. ----, 112 S.Ct. 591, 116 L.Ed.2d 615 (1991).

Rule 11 of the Federal Rules of Criminal Procedure provided:

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: ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term or term of supervised release and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense....

Fed.R.Crim.P. 11(c)(1). The district court incorrectly stated that the minimum term of incarceration was twenty years, and that the maximum fine was $4 million: in fact the statutory minimum sentence was ten years, and Scott could have been required to pay a fine up to $8 million. ⁴ Furthermore, the district court did not inform Scott of the maximum term of supervised release, and offered no explanation as to the meaning or effect of supervised release. Therefore, the district court failed to satisfy the requirements of Rule 11(c)(1), ⁵ and the district court clearly erred when it found that Scott was fully advised of the consequences of his plea.

However, not every violation of the plea colloquy requirements of Rule 11 leads to an automatic reversal of the defendant's conviction. See Dayton, 604 F.2d at 939-40. In Dayton, we held that Rule 11 has certain "core concerns." Id. at 939. The three core concerns are "absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea." Id.; see also Fed.R.Crim.P. 11(c)(1) (addressing core concern that defendant be informed of direct consequences of guilty plea). A mere inadequate address of a core concern does not require reversal if the error is harmless. Dayton, 604 F.2d at 939; United States v. Bachynsky, 934 F.2d 1349, 1354 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991). An "entire failure" to address one of those core concerns, however, is not reviewed for harmless error; rather it requires automatic reversal of the defendant's conviction. Dayton, 604 F.2d at 939.

Scott argues that the district court's failure to comply with Rule 11(c)(1) was so egregious that it amounted to an entire failure to address the plea-consequences concern of Rule 11. We agree. An entire failure to address a core concern of Rule 11 can occur even though the district court speaks to the issue and provides some of the information that the rule requires. In United States v. Punch, 709 F.2d 889 (5th Cir.1983), where the defendant claimed that he was not adequately apprised of the nature of the charges against him, we commented that, "[a]s used in Dayton, the term 'entire failure' does not mean failure to make any mention of the charge whatsoever." Id. at 896; see also Bachynsky, 934 F.2d at 1359-60 (holding that failure to explain supervised release, when accompanied by exacerbating factors, may necessitate automatic reversal, even though defendant was informed of maximum possible penalty). We went on to hold:

[T]he harmless error standard may properly be applied to failures to address ... core concerns, where these failures represent...