U.S. v. Watch

• Citation: 7 F.3d 422
• Decision Date: 05 November 1993
• Docket Number: No. 91-8671,91-8671
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lanier WATCH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 422

7 F.3d 422

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lanier WATCH, Defendant-Appellant.

No. 91-8671.

United States Court of Appeals, Fifth Circuit.

Nov. 5, 1993.

John M. Pinckney, San Antonio, TX (Court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, DeMOSS, Circuit Judges, and BARBOUR, ¹ District Judge.

BARBOUR, District Judge:

Defendant, Gary Watch, appeals his conviction on the ground that the district court violated Rule 11 of the Federal Rules of Criminal Procedure in accepting his guilty plea. Watch also appeals the district court's denial of his motion to suppress evidence and seeks a determination that he has been denied his right to effective assistance of counsel. We agree with Watch's Rule 11 argument, and therefore vacate his conviction so that he may be given an opportunity to replead. We dismiss as premature Watch's claims regarding the denial of his motion to suppress and ineffective assistance of counsel.

I.

By grand jury indictment filed May 9, 1991, Watch and his codefendant were charged with possessing with intent to distribute at least fifty grams of cocaine base, "crack" cocaine, in violation of 21 U.S.C. § 841(a)(1) and with carrying a firearm during the commission of that offense in violation of 18 U.S.C. § 924(c). On June 24, 1991, Watch's trial counsel filed a motion to suppress the evidence which served as the basis for the charges against Watch, and on September 26, 1991, the district court, having conducted a hearing regarding the matter, entered an order denying Watch's motion.

Soon thereafter, on September 30, 1991, a superseding information was filed against Watch and his codefendant charging them as follows:

On or about April 30, 1991, in the Western District of Texas, Defendants, Gary Lanier Watch and Byron Mark Sanderson unlawfully, knowingly, and intentionally did possess cocaine base, also known as "crack" cocaine, a Schedule II Narcotic Drug Controlled Substance, with intent to distribute the same, in violation of Title 21, United States Code, Section 841(a)(1).

No mention of the amount of drugs involved was made in this superseding information. On that same day, Watch entered into a plea agreement wherein he agreed to enter a plea of guilty to the superseding information in exchange for an agreement by the United States Attorney to dismiss the original indictment at sentencing and refrain from prosecuting Watch for other drug and firearm offenses that may have arisen out of the conduct which led to Watch's arrest and indictment.

Pursuant to the plea agreement, Watch was re-arraigned on and entered his plea of guilty to the charge contained in the superseding information. After Watch had entered his guilty plea, the government invited him to provide assistance to law enforcement officers in exchange for which the government would file a motion for a downward departure from the offense level determined under the United States Sentencing Guidelines ("Guidelines"). Watch assisted in the prosecution of two individuals to whom he had been selling "crack" cocaine and the government, in turn, filed a motion for downward departure and presented evidence of the nature and extent of Watch's assistance at Watch's sentencing hearing held on December 6, 1991.

At the sentencing hearing, the district court accepted the Guidelines calculation contained in the presentence report. ² The district court granted the government's motion for downward departure, thereby reducing the total offense level from 32 to 28. ³ The district court then sentenced Watch to a term of imprisonment of 120 months with five years supervised release and imposed a fine of $5,000 with a mandatory $50 assessment.

Pursuant to 28 U.S.C. § 1291, Watch invokes the jurisdiction of this Court and argues that because the district court did not adequately advise him regarding the consequences of his guilty plea, a core concern of Rule 11 of the Federal Rules of Criminal Procedure was not satisfied and his conviction should therefore be vacated. Watch also appeals the denial by the district court of his motion to suppress and claims that he was not afforded effective assistance of counsel.

II.

A.

Watch argues that his conviction must be vacated because the district court violated Rule 11(c)(1) by accepting his plea without first properly informing him as to the mandatory minimum penalty provided by law for the offense with which he was charged. Fed.R.Crim.P. 11(c)(1). Rule 11 provides in pertinent part as follows:

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 penalty provided by law....

Fed.R.Crim.P. 11(c)(1).

At the plea hearing, after a series of questions from Watch concerning the sentence applicable to the charge contained in the superseding information and the potential effects the presentence report might have on that sentence, the following colloquy took place:

THE COURT: Well, if I understand correctly,--and these attorneys can correct me if I--if I'm wrong--the allegation in the Indictment was that you possessed with intent to distribute or in some manner trafficked in--in more than 50 kilograms [sic]. And if that's the case, then the minimum possible punishment is ten years--is it 10 to 40, Mr. Johnston [prosecutor], or--

MR. JOHNSTON: Your Honor, the way it was originally drafted they were looking at a minimum of ten and up to life and it could have actually been enhanced with a prior conviction of 20 years to life, we understand. And rather than expose them to that, the nature of the plea agreement is, then, it dropped it back down to where it's zero and a statutory maximum of 20.

....

THE COURT: All right. Mr. Watch, I don't know if that answers your question or not. Does it?

DEFENDANT WATCH: Pretty much so.

THE COURT: Well, I don't want you to be pretty much satisfied that you understand, I want you to be completely satisfied that you understand.

(Hushed conversation between Defendant Watch and Counsel for Defendant Watch).

DEFENDANT WATCH: Yes, I understand.

Supp. Record on Appeal, vol. III, at 18-19. The district court then found, inter alia, that Watch fully understood the "charge and penalties" and accepted Watch's guilty plea. Supp. Record on Appeal, vol. III, at 20-21.

21 U.S.C. § 841(b)(1)(A) provides that violations of § 841(a) involving fifty grams or more of cocaine base are punishable by a term of imprisonment which may not be less than ten years or more than life. Section 841(b)(1)(C) provides that violations of § 841(a) involving less than five grams of cocaine base are punishable by a term of imprisonment of up to twenty years. It is clear from the record, and the government concedes, that in entering into the plea agreement with Watch and filing the superseding information, the parties were attempting to avoid the application of the statutory minimum sentence provided for in 21 U.S.C. § 841(b)(1)(A) and instead have the district court apply as a "default" the less severe § 841(b)(1)(C). The most glaring indications of this attempt are: (1) the fact that the superseding information did not allege the quantity of cocaine base involved in the offense although the indictment originally entered against Watch alleged that he had possessed at least fifty grams of cocaine base; and (2) the contention of Assistant United States Attorney Johnston at the plea hearing that under the superseding information Watch was subject only to the penalty range prescribed in § 841(b)(1)(C). As a result of this agreement between the parties and the acquiescence of the district judge to the representations of Johnston, Watch was advised at the plea hearing that in pleading guilty to the superseding information he could be sentenced to a term of imprisonment of between zero and twenty years. He was not advised that he would be subject to a mandatory minimum of ten years if the amount of cocaine base involved was found at sentencing to exceed fifty grams.

In determining whether the district court correctly informed Watch of the penalty range he faced under § 841(b), this Court is presented with the question of how, in Guidelines cases, the absence from an indictment or information of an allegation of a specific quantity of drugs affects the application of the quantity-based minimum sentences provided for in § 841(b). It is well established in this circuit that quantity is not an element of the offenses proscribed by § 841(a) and is relevant only at sentencing under § 841(b). ⁴ See United States v. Anderson, 987 F.2d 251 (5th Cir.1993); United States v. Royal, 972 F.2d 643 (5th Cir.1992); United States v. Morgan, 835 F.2d 79 (5th Cir.1987). Consequently, quantity need not be finally determined until the sentencing hearing when the district judge, applying a preponderance of the evidence standard, determines the quantity of drugs involved in the offense and applies the Guidelines accordingly.

An examination of the Guidelines makes clear that the statutory minimum terms of imprisonment found in § 841(b) are incorporated therein. In this case, for example, the district court determined that 71.6 grams of cocaine base were involved in the offense to which Watch pleaded guilty. The Drug Quantity Table found in the Guidelines provides that offenses involving at least 50 grams but less than 150 grams of cocaine base receive a base offense level of 32. United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(6) (Nov.1992) [hereinafter U.S.S.G.]. Under the Guidelines Sentencing Table, the minimum term of imprisonment for an offense level of 32 is 121...