U.S. v. Still, 96-30009

• Citation: 102 F.3d 118
• Decision Date: 10 December 1996
• Docket Number: No. 96-30009,96-30009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Byron STILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 118

102 F.3d 118

UNITED STATES of America, Plaintiff-Appellee, v. Byron STILL, Defendant-Appellant.

No. 96-30009.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 1996.

Francis M. King, Stephen A. Higginson, Assistant U.S. Attorney, Office of the United States Attorney, New Orleans, LA, for plaintiff-appellee.

Arthur A. Lemann, III, Arthur Anthony Lemann, IV, Arthur Lemann III & Associates, New Orleans, LA, for defendant-appellant.

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

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Byron Still pleaded guilty to six counts in a second superseding indictment. Still appeals his guilty pleas to counts one and two on the ground that the district court failed to advise him of the correct mandatory minimum sentence applicable to count one. He also appeals the district court's denial of his motion to withdraw his guilty plea to count three. We affirm in part and vacate in part, remanding to enable Still to replead to count one.

I

Jose Bartolo Menjivar arranged for Jorge Salgado III and a Drug Enforcement Administration ("DEA") cooperating individual ("CI") to transport four kilograms of cocaine from Houston, Texas to a buyer in New Orleans, Louisiana. The CI notified the DEA of the transaction. Upon their arrival at a Days Inn Motel in New Orleans, Salgado and the CI arranged for Byron Still to purchase the cocaine at the motel. DEA agents observed Still's arrival at the motel where he gave Salgado $20,000 in exchange for the cocaine. DEA agents then followed Still to his home.

The agents searched Still's residence pursuant to a search warrant and arrested him after discovering four kilograms of cocaine in the residence. The agents also discovered a nine millimeter firearm under the front seat of the automobile Still had driven to the exchange with Salgado.

The government charged Still with one count of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, a second count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), a third count of using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), and three money laundering offenses under 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(a)(2). Still's wife, Janice Taylor Still, was charged as a co-defendant under counts one and two.

Still pleaded not guilty to the initial indictment, and not guilty to a superseding indictment that added Menjivar and Salgado as defendants under counts one and two. Still also pleaded not guilty to a second superseding indictment that dropped count two as to Janice Still. Ultimately, however, Still changed his mind and pleaded guilty to all counts of the second superseding indictment.

At the rearraignment hearing, the district court informed Still that he faced a maximum sentence of forty years in custody and a mandatory minimum sentence of five years in custody as to counts one and two based on the four kilograms of cocaine seized at Still's residence. The court also informed Still of the maximum penalties for counts three, four, five and six. During the plea colloquy, the court asked Still whether the sentencing guidelines applicable to his case had been explained to him; Still responded "[n]ot clearly." Because no probation officer was present, Still's attorney and the prosecutor explained to Still during a recess in the hearing that he likely faced a sentencing range of 70 to 87 months. ¹ This range presupposed a drug quantity of four kilograms with an adjustment for acceptance of responsibility. Following the recess, Still entered a guilty plea to each count of the indictment. ²

The district court held sentencing hearings on December 6, 7, 13, and 21, 1995. At the December 6 hearing, the court found that Still had dealt in "at least five kilograms of cocaine," based upon the four kilograms seized at Still's residence at the time of his arrest and upon relevant conduct separate from the charged offenses. ³ The district court's finding that Still had dealt in at least five kilograms of cocaine triggered a mandatory minimum sentence of ten years as to count one, rather than the five year mandatory minimum of which Still had been informed at the rearraignment hearing. Because the district court's quantity finding differed from the amount of cocaine upon which the Probation Officer had based her sentencing report, the district court continued the sentencing hearing to December 7 to permit the Probation Officer to recompute Still's sentencing range. ⁴

On December 7, however, the court again rescheduled the sentencing hearing to permit the parties to analyze the effect, if any, of the Supreme Court's December 6 decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), on Still's guilty plea to count three. At the December 13 hearing, Still moved to withdraw his guilty plea to that count. The district court again continued the sentencing to allow the parties to submit briefs regarding Bailey's effect on Still's guilty plea to count three. At the final sentencing hearing on December 21, the court denied Still's motion to withdraw his plea to count three and imposed sentence. The court grouped the drug counts with the money laundering counts pursuant to § 3D1.2 of the Guidelines, ⁵ and sentenced Still to concurrent terms of imprisonment of 121 months on counts one, two, four, five and six and to a consecutive term of imprisonment of sixty months on count three. ⁶ Still appeals.

II

Still challenges his guilty pleas to counts one and two of the second superseding indictment, ⁷ arguing that the district court's failure to inform him of the proper mandatory minimum sentence applicable to count one violated FED.R.CRIM. P. 11. ⁸ When an appellant claims that a district court has failed to comply with Rule 11, ⁹ we "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?" United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc).

A

Still argues, and the government concedes, that the district court's failure to inform Still of the correct mandatory minimum sentence applicable to count one mandates vacatur of Still's plea to that charge. We agree.

The district court informed Still that he was subject to a mandatory minimum sentence of five years in custody for counts one and two. However, at the time of the Rule 11 colloquy, the quantity of cocaine for which Still would be held responsible had not yet been determined. When the district court determined at the December 6 sentencing hearing that Still would be held responsible for "at least five kilograms" of cocaine, the mandatory minimum sentence applicable to count one became ten years rather than five pursuant to 21 U.S.C. § 841(b).

Applying our Johnson standard, we conclude that the district court varied from the procedures required by Rule 11 when it failed to inform Still of the mandatory minimum sentence to which he could be subject under count one. This error certainly misled Still as to the statutory minimum and "thereby amounted to a complete failure to address the plea-consequences concern of Rule 11." United States v. Watch, 7 F.3d 422, 429 (5th Cir.1993). Moreover, Still's rights were substantially affected by the erroneous information regarding the mandatory minimum sentence applicable to count one. See id. (holding that "because the district court failed to inform Watch of the minimum sentence which might be imposed, Watch did not fully understand the consequences of his plea, and his rights were therefore substantially affected"). As a result, Still's plea to count one must be vacated and the case remanded to enable Still to plead to this count again. See id. (vacating and remanding to permit defendant to plead anew).

B

Still also argues that the district court's failure to inform him of the proper mandatory minimum sentence applicable to count one mandates vacatur of his guilty plea to count two. He contends that the district court's misstatement regarding the mandatory minimum sentence applicable to count one infected his plea to count two because "the mandatory minimum sentence [he] faced clearly was a material factor that affected his decision to plead guilty" because he pleaded guilty "with the understanding that he faced a range of 70 to 87 months under the Sentencing Guidelines." ¹⁰

In response, the government maintains that Still's convictions are individual and that each count of the indictment is "independent and divisible." The government contends that Still's conviction on count two should be affirmed because Still received correct information regarding the penalties applicable to count two and thus no Rule 11 error occurred with respect to that count.

To analyze Still's claim, we first address the initial prong of our harmless error test, i.e., whether the district court varied from the procedures required by Rule 11. As noted, Rule 11 directs the district court to inform the defendant of, and determine that the defendant understands, "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...." FED.R.CRIM.P. 11(c). Rule 11(c) by its terms does not contemplate overlap of the counts, but rather speaks in terms of individual "charge[s] to which plea[s] [are] offered." Thus, a plain reading of Rule 11 requires the district court to inform the defendant of the nature of the charge to which the defendant is pleading, any mandatory minimum penalty, and the maximum possible penalty applicable to each count to which the defendant is pleading guilty.

In this case, the...