U.S. v. Turner

• Decision Date: 10 July 1989
• Docket Number: No. 88-5143,88-5143
• Citation: 881 F.2d 684
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Gene TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 684

881 F.2d 684

UNITED STATES of America, Plaintiff-Appellee, v. Larry Gene TURNER, Defendant-Appellant.

No. 88-5143.

United States Court of Appeals, Ninth Circuit.

Submitted July 10, 1989 ^*.

Decided Aug. 1, 1989.

H. Dean Steward, Federal Public Defenders, Santa Ana, Cal., for defendant-appellant.

Steven E. Zipperstein, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ALARCON, BRUNETTI and THOMPSON, Circuit Judges.

ALARCON, Circuit Judge:

Larry Gene Turner appeals from the judgment entered after he pled guilty on February 11, 1988, to one count of a two-count indictment charging him with bank robbery under 18 U.S.C. Sec. 2113(a). Turner was sentenced under the Sentencing Guidelines. Turner had an offense level of 17 and a criminal history category of VI, resulting in a guideline sentencing range of 51 to 63 months. The district court sentenced Turner to 57 months in custody. On appeal Turner seeks resentencing on the ground that (1) he should have been informed of his criminal history category under the Sentencing Guidelines prior to the entry of his guilty plea, and (2) the district court misapplied the guidelines by including two separate misdemeanors in the calculation of Turner's criminal history category. We affirm.

I. DISCUSSION

A. Guilty Plea

Turner contends that because "the applicable Sentencing Guidelines and factors used to arrive at those Guidelines" are a direct consequence of a guilty plea, the record must show that he was aware of them prior to entry of his plea. Turner contends that the failure of the court to inform him of the applicable offense level and criminal history category renders his guilty plea involuntary under Federal Rule of Criminal Procedure 11. We review independently and non-deferentially a claim that a guilty plea was involuntary. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986).

Federal Rule of Criminal Procedure 11 provides in pertinent part:

(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 (d) Insuring that the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.

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; and ...

The record indicates that Turner was informed and aware that the maximum penalty for bank robbery was twenty years. The government did not make any promises or representations regarding a sentencing recommendation. The plea agreement provided that Turner would plead guilty to one count of bank robbery and in return the government at sentencing would move to dismiss the second count of bank robbery. No other promises were made to Turner. The district court determined that the plea was voluntary.

Turner contends that, because the Sentencing Guidelines are "highly restrictive, if not controlling," instructing a defendant of the maximum sentence provided by statute is not enough to comply with Federal Rule of Criminal Procedure 11. We disagree. In those cases where we have found a constitutional violation or a violation of Federal Rule of Criminal Procedure 11, the maximum period of time a defendant's liberty was restrained exceeded the maximum period he was told was applicable. See Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir.1986) (constitutional error occurred where defendant was not informed of a mandatory parole term, which had to be served in addition to the term of confinement imposed), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987); accord Bunker v. Wise, 550 F.2d 1155, 1158 (9th Cir.1977).

Under the Sentencing Guidelines, although various factors will increase or "enhance" the range of a particular defendant's sentence, the maximum sentence in all cases will never exceed the maximum provided by statute. Sentencing Guidelines Sec. 5G1.1 Commentary. Moreover, the mandatory minimum sentence provided by a particular statute must be pronounced even if the defendant falls under a lower sentencing range under the Sentencing Guidelines. Id.

In the instant matter, defense counsel thought Turner had only four prior misdemeanors based on the FBI "rapsheet." Thus, defense counsel believed that Turner would be in a criminal history category of IV. When the presentence report came back, it showed that Turner had ten prior misdemeanors resulting in a criminal history category of VI. Therefore, instead of a Sentencing Guideline range of 37 to 46 months (offense level 17, criminal history category IV), the applicable sentencing range was 51 to 63 months (offense level 17, criminal history category VI). The fact that the applicable Sentencing Guideline range was higher than defense counsel estimated, however, does not demonstrate a violation of Federal Rule of Criminal Procedure 11. As we stated in Johnson v. United States, 539 F.2d 1241, 1243 (9th Cir.), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 228 (1976):

A guilty plea invariably is made without complete foresight of the possible outcome of alternative procedures that might have been undertaken. Thus, an accused, with the assistance of his attorney, must examine the evidence which the Government has amassed against him, consider possible defenses, weigh the costs and benefits of proceeding to trial and ultimately decide, in light of the information then available, whether to enter a guilty plea. There is no guarantee that the accused will make the correct decision or that in hindsight such plea will not reflect an error in fact or (citation omitted) (emphasis added); see also United States v. Henderson, 565 F.2d 1119, 1121 (9th Cir.1977) (disappointed hope for leniency, without more, does not render a guilty plea invalid), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978).

judgment. Such uncertainty, which after all is the linchpin of every plea bargain, is inherent in a guilty plea and does not make the plea involuntary.

The district court fully advised Turner, prior to accepting his plea, that the Sentencing Guidelines would apply. Turner was also informed by the court that a sentence under the Sentencing Guidelines could be based on factors not known at the time the plea was entered. The colloquy was as follows:

The Court: All right. Now. In addition there are certain guidelines now in effect which cover, possibly cover your case. Have you talked those over with your lawyer?

The Defendant: Yes, sir.

The Court: All right. Now, you understand that how those guidelines apply to your case depend on factors which we don't know yet. Your lawyer may not know, and I may not know. Do you understand that?

The Defendant: Yes, sir.

The Court: So, if your lawyer has made you a prediction based on the guidelines, that prediction may be off for a couple of reasons, because the factors may be a little different than you thought, do you understand that?

The Defendant: Yes, sir.

The Court: Do you understand also that I can depart from the guidelines in certain cases. I can go above them or below them ...

The Defendant: Yes, sir.

The Court: ... in certain situations. You understand that?

The Defendant: Yes, sir.

The Court: What this leads up to is this. That if the prediction made you, if you made one, or if you have a number in mind, if that's off, if that's wrong, and I have another number in mind when it comes down to sentencing, you aren't going to be able to withdraw your plea. You understand that?

The Defendant: Yes, sir.

Turner was advised of the maximum penalty for bank robbery and was advised of the implications of sentencing under the Sentencing Guidelines. Under these circumstances, we conclude that Turner's guilty plea was not involuntary under Federal Rule of Criminal Procedure 11. The district court was not required to inform Turner of the applicable offense level and criminal history category under the Sentencing Guidelines prior to accepting Turner's guilty plea. See Lewis v. United States, 601 F.2d 1100, 1101 (9th Cir.1979) ("Rule 11 does not require that the court inform the defendant of the probability of his receiving one sentence or another. Indeed, it is improper to do so.").

We also reject Turner's claim that he may have been ineffectively advised by counsel regarding the possible sentencing range under the Sentencing Guidelines. "[A] mere inaccurate prediction, standing alone, would not constitute ineffective assistance" of counsel. Iaea, 800 F.2d at 865....