U.S. v. Watson

• Decision Date: 18 February 1977
• Docket Number: No. 75-2099,75-2099
• Citation: 179 U.S.App.D.C. 103,548 F.2d 1058
• Parties: UNITED STATES of America v. Merle V. WATSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1058

548 F.2d 1058

179 U.S.App.D.C. 103

UNITED STATES of America v. Merle V. WATSON, Appellant.

No. 75-2099.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 24, 1976.

Decided Jan. 5, 1977.

Rehearing denied Feb. 18, 1977.

Karen Zokoff, student counsel, with whom Michael Geltner and Geoffrey McC. Johnson, student counsel, were on the brief, for appellant.

Sallie H. Helm, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before McGOWAN, LEVENTHAL and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge.

This is an appeal from a denial by the District Court, without hearing, of appellant's application under 28 U.S.C. § 2255 for vacation of his criminal sentence, entered upon a guilty plea. Appellant's claim for collateral relief is founded upon his assertion that his guilty plea was vitiated by his failure to be informed that his sentence was required by statute to include a special parole term, and that this failure constituted a violation of Rule 11 of the Federal Rules of Criminal Procedure. For the reasons hereinafter appearing, we hold that those Rules themselves make provision for collateral challenge of a sentence based upon an allegedly defective guilty plea; and, accordingly, we remand with directions that appellant's application for relief be considered and disposed of as a motion to withdraw his guilty plea under Rule 32(d), Fed.R.Crim.P.

I

An indictment was returned on November 1, 1973, charging appellant with six counts of narcotics violations. When the case was called for trial on March 5, 1974, appellant signified to the court his purpose to plead guilty to one count of possessing heroin with intent to distribute, 21 U.S.C. § 841(a), and the prosecution stated its agreement to dismiss the remaining counts and not to allocute at sentencing. Appellant's counsel described to the court several conversations he had had with appellant about a number of circumstances relevant to the decision to plead. The court explained to appellant in detail his right to proceed to a jury determination of his guilt or innocence, and his constitutional rights in that proceeding. The elements of the offense to which appellant proposed to plead were explained, and he was informed by the court that sentence thereon might (1) be comprised of as many as 15 years in prison, or a fine of $25,000, or both, (2) be consecutive to his Virginia probationary sentence, ¹ and (3) entail possible revocation of his Virginia probation. Appellant professed his understanding of these contingencies, and, in response to a question from the court, stated his satisfaction with the assistance given him by his counsel.

The court then inquired into the factual basis for the guilty plea, and was told by both the prosecutor and a Government witness that the evidence would show that on two occasions appellant had sold heroin to an undercover police officer, and that, when eventually arrested, had been found in possession of illegal narcotics. Appellant agreed that the facts as stated were correct, but asked for an Alford plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ), asserting that his defense was "entrapment," which his counsel interpreted to mean that appellant "thought he was doing a favor for another narcotics user . . . ." Although the court ruled that an Alford plea was not justified, appellant reaffirmed his purpose to plead guilty to the one count; and the plea was taken. ²

At the subsequent sentencing proceeding on April 11, 1975, the court, with no objection made, imposed a prison term of two to six years, to be followed by a special parole term of four years. ³ On September 9, 1975, appellant wrote a letter to the court requesting vacation of his sentence "pursuant to 2255." Two weeks later the court marked the request as denied.

II

Rule 11, Fed.R.Crim.P., as it existed at the time of appellant's plea, ⁴ provided in pertinent part as follows:

The court may refuse to accept a plea of guilty, and shall not accept such a plea . . . without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. (Emphasis supplied).

Appellant's contention is that, in accepting his plea without having determined that appellant was aware of the statutorily mandated special parole term, the court violated the Rule. This claim rests, of course, upon an interpretation of "the consequences of the plea" as comprehending the special parole term. As a last, and alternative, argument in its brief the Government asserts that we have not as yet, and need not now, embrace that interpretation. Its rationale essentially is that any adverse effect of the special parole term can come about only by reason of the defendant's conduct after that term attaches. Further, it insists that the restraint deriving from the supervision given during good behavior is minimal, and should not be taken to constitute a substantial aspect of the total sentence.

It is obvious that this approach has a highly subjective element in it, and that its force may vary depending upon whether one is sitting on the bench or standing in front of it. In any event, it is, as the Government volunteers, an argument that has failed of acceptance in six circuits; and it fares no better in this one. ⁵ We have no doubt that the authors of Rule 11 in its original form would have considered a mandatory special parole term of three years or more following upon a prison sentence to be a matter of consequence to a defendant proposing to plead guilty. Although the 1975 amendment of Rule 11 dropped the reference to the "consequences" of the plea, we regard its mandate that a defendant be informed of the "maximum possible sentence" as continuing to require that he be informed of the mandatory special parole term.

III

The Government's principal argument for affirmance derives, however, from the fact that appellant has sought relief under § 2255. It insists that there are recognized distinctions between the scope of relief available on direct appeal, on the one hand, and the collateral challenge afforded by that statute, on the other. Since the District Court here, in taking the plea, at most committed a violation of Rule 11, that error is not, so it is said, of such dimension as to warrant collateral disturbance of the conviction. The Government points in this regard to Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1975), where the Supreme Court, in holding 2255 relief available to repair an injustice flowing from an intervening change in the circuit's interpretation of the draft laws, felt it necessary to add:

This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, (82 S.Ct. 468, 7 L.Ed.2d 417) (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "(i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., at 428 (82 S.Ct. 468) (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the "laws of the United States." ⁶

It is the Government's submission that it is wholly reasonable that a greater showing of injustice is necessary to obtain § 2255 relief than is requisite on direct appeal; and it stresses that appellant has asserted neither prejudice to himself nor involuntariness in the making of his plea, only the violation of the Rule. It stresses the unfairness of requiring the prosecution, which was ready, willing and able to proceed with the trial on March 5, 1974, to face the problems inherent in placing itself in that position again more than two years later. In any event, says the Government, these are the kinds of considerations which underlie the Supreme Court's more stringent test for the invocation of § 2255; and it is a test which appellant has fallen far short of meeting.

Appellant, contrarily, argues that McCarthy v. United States, 394 U.S. 459, 470, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418 (1969), announced a per se rule that "a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew . . . " ⁷ Appellant further relies heavily on the fact that in five cases involving the same violation of Rule 11 as that presented in this case, namely, failure to mention the special parole term, five circuit courts of appeals have taken the per se approach and vacated the sentences in § 2255 proceedings. ⁸

However, one of those circuits the Eighth appears recently to have abandoned that approach. McRae v. United States, 540 F.2d 943, decided August 26, 1976. In McRae the court reexamined its Richardson position by reference to the intervening discussion by the Supreme Court in Davis of the scope of 2255 review. It concluded from that discussion that "(N)oncompliance with the formal requirements of a rule of criminal procedure would not permit collateral review in the absence of indicated prejudice to the defendant . . . ." Accepting the fact that a Rule 11 error had been made by the trial court in failing to inform the defendant of the special parole term, the court ruled that "the evaluation...