U.S. v. Shacklett, 90-4350
| Decision Date | 09 January 1991 |
| Docket Number | No. 90-4350,90-4350 |
| Citation | 921 F.2d 580 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Virgil SHACKLETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John H. Hannah, Jr., Tyler, Tex. (Court-appointed), for defendant-appellant.
Tonda Curry, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Tyler, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before GARWOOD and WIENER, Circuit Judges, and VELA *, District Judge.
Defendant, Virgil Shacklett (Shacklett), appeals his conviction for conspiring to manufacture and possess amphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, to which he had pleaded guilty, on grounds that the district court failed to comply with Fed.R.Crim.P. 11. Shacklett also appeals the district court's finding that the government knew, before entering into the plea agreement, that sixty-six pounds of amphetamine were attributable to Shacklett. Finding that the district court failed to address a core concern of Rule 11 and that it erred by basing Shacklett's sentence on unreliable information about the quantity of amphetamine, we reverse the conviction, vacate the sentence, and remand to the district court with the instruction to permit Shacklett to plead anew.
Shacklett entered into a plea agreement with the government in which he agreed to plead guilty to one count of conspiring to manufacture and to possess with intent to distribute nine (9) pounds of amphetamine. At the plea hearing, the district court admonished Shacklett as to his waiver of the reading of the Information and as to the waiver of his constitutional rights. The court informed Shacklett of the maximum punishment, the special release period, and the special assessment. The court also gave Shacklett a general outline of the procedure used in applying the sentencing guidelines. In regard to the nature of the offense to which Shacklett sought to plead guilty, however, the district court made no express admonishments and did not mention the contents of the plea agreement when it accepted Shacklett's plea.
At his subsequent sentencing hearing, Shacklett objected to several findings made in the Presentencing Investigation Report (PSR). Shacklett particularly objected to the court's use of sixty-six pounds of amphetamine to calculate his offense level rather than the nine pounds stipulated in the plea agreement because, he claimed, the government reliably knew of only the lesser amount before Shacklett cooperated. The government conceded that Shacklett cooperated with the investigation within the meaning of Guideline Sec. 1B1.8(a) and that when Shacklett agreed to cooperate, only nine pounds of amphetamine were attributable to Shacklett. The probation officer intervened, stating that the government knew of the sixty-six pounds of amphetamine because Preston Isham, a convicted member of the same drug conspiracy, had informed the government in January 1987 that sixty-six pounds of amphetamine had been produced in his labs in which Shacklett was the "cook." The court ultimately rejected both Shacklett's objections and the government's statement, and adopted the findings made in the PSR. On April 6, 1990, Shacklett was sentenced to 210 months imprisonment, supervised release of three years, no fine and a special assessment of $50. 1
Shacklett appeals, seeking reversal of his conviction, arguing that the district court's failure to advise him concerning the nature of the charges against him and the existence, terms and impact of the written plea agreement was a complete failure to address a core concern of Rule 11. Shacklett also claims that the district court misapplied Sentencing Guideline Sec. 1B1.8 by including the larger quantity of amphetamine in computing his offense level even though the larger quantity was not reliably known to the government before he cooperated. 2
Rule 11 addresses 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. United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). When the trial court "wholly or entirely fails" to address a core concern of Rule 11, the conviction must be overturned. United States v. Pierce, 893 F.2d 669, 679 (5th Cir.1990) (citing United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980)). If, however, the district court's compliance with Rule 11 is "less than letter perfect" or if it merely inadequately addresses a core concern, this court will evaluate such failure to comply with Rule 11 under a harmless error analysis that focuses on whether the defendant's substantive rights were affected. Bernal, 861 F.2d at 436 (citing United States v. Corbett, 742 F.2d 173, 179 (5th Cir.1984)); see also Fed.R.Crim.P. 11(h). The district court must therefore personally participate in the colloquy mandated by Rule 11 in order to assure itself that the defendant understands what he is admitting and the consequences of his admissions and that his admissions constitute the crime charged. Dayton, 604 F.2d at 943.
Shacklett argues that reversal is warranted because the district court failed personally to inform him of the nature of the charges against him, claiming this omission constituted an entire failure to address a Rule 11 core concern. After reading the record carefully, we find that Shacklett's contention is correct--the charge was never read aloud, the court never explained the essential elements, and the charge itself was never mentioned during the proceedings, except by inference when the government established a factual basis for the charge.
The government acknowledges that the district court failed to inform Shacklett of the nature of the charges against him; however, it argues that while the district court's compliance with Rule 11 was "less than letter perfect," it did not wholly fail to address a core concern because clearly Shacklett understood the nature of the charge. The government contends that because Shacklett received a copy of the Information and stated that he had ample time to go over it with his lawyer, Shacklett understood the charge and the consequences of a guilty plea to that charge. The government argues, therefore, that the district court's failure specifically to explain the charge to Shacklett was harmless error. In light of this court's strict precedent, we have no choice but to disagree.
In a factually similar case, this court stated that reversal of the defendant's conviction is required even if the plea agreement itself sufficed to inform the defendant of the charges against him or if the defendant had silently read the plea agreement in the presence of the court, because in order to satisfy the core concerns of Rule 11, the court must personally advise the defendant of the nature of the charges against him. See Bernal, 861 F.2d at 437. The district court must establish on the record that the defendant understands the charges against him and the consequences of pleading guilty. Id. Similarly in Corbett, we reversed the district court's acceptance of the guilty plea because the district court failed to read the charge instrument aloud or give the defendant equivalent information upon which to base his plea, even though the defendant admitted all the elements of both counts of the crime when presented by the prosecution as elements it was prepared to prove. Corbett, 742 F.2d at 180.
In the instant case, the district court never inquired whether Shacklett understood the nature of the charges against him. Shacklett's general understanding of the charge against him without the district court's personal, on-the-record inquiry into the matter is insufficient to support acceptance of the guilty plea by the district court. Therefore, we must reverse Shacklett's conviction and remand to the district court with direction to allow Shacklett to plead anew. 3
Under Sentencing Guideline Sec. 1B1.8(a), if a defendant agrees to cooperate with the government by providing information concerning the unlawful activities of others, and the government agrees that any self-incriminating information thus revealed will not be used against the defendant, such information shall not be used in determining the applicable guideline range. This restriction, however, does not apply to information known to the government before the defendant enters the plea agreement. U.S.S.G. Sec....
To continue reading
Request your trial
-
U.S. v. Simmons
...district court indicate, however, whose interviews or testimony figured into the 491.91 gram determination. See United States v. Shacklett, 921 F.2d 580, 584 (5th Cir.1991) (clear error for district court to sentence defendant on the basis of PSR which did not refer to the source of its fac......
-
Rubashkin v. United States
...sentence because drug quantity finding could have been based on testimony of a drug addict with impaired memory); United States v. Shacklett, 921 F.2d 580, 584 (5th Cir. 1991) (vacating sentence because district court relied solely on probation officer's conclusory statement as to drug quan......
-
United States v. Freeman
...sentence because the drug quantity finding was based on testimony of a drug addict with impaired memory); United States v. Shacklett, 921 F.2d 580 (5th Cir.1991) (vacating sentence because district court relied solely on probation's officer's conclusory statement as to drug quantity involve......
-
United States v. Foster
...into reliable evidence, without providing any information for the basis of the statements." (citation omitted) ); United States v. Shacklett , 921 F.2d 580, 584 (5th Cir. 1991) (explaining that a probation officer’s unsupported assertion in a PSR as to drug quantity amount had "no indicia o......