United States v. Smith, 18700

• Decision Date: 08 March 1971
• Docket Number: 18701.,No. 18700,18700
• Citation: 440 F.2d 521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William C. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

440 F.2d 521 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. William C. SMITH, Defendant-Appellant.

Nos. 18700, 18701.

United States Court of Appeals, Seventh Circuit.

March 8, 1971.

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

William J. Bauer, U. S. Atty., Michael D. Marrs, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel.

Before HASTINGS, Senior Circuit Judge, and KERNER and STEVENS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

The only issue raised by these appeals is whether a person who pleads guilty to a charge of a federal narcotics law violation, without knowledge that he will be ineligible for parole from the sentence he receives, enters his guilty plea voluntarily with an understanding of the consequences of such plea.

Defendant William C. Smith was charged in two two-count indictments with violations of the narcotics laws.¹ Desiring to change his plea to Count II of each indictment² from not guilty to guilty, defendant was brought before the district court on February 3, 1969. The court questioned Smith to insure that he knew the effects of his plea and that he entered the plea voluntarily without any promises or threats. Smith was informed that he could receive a maximum fine of $20,000 on each count and maximum imprisonment of forty years. The court did not advise Smith that Title 26, U.S. C.A. § 7237(d)³ would render him ineligible for parole.⁴

The district court accepted Smith's guilty pleas and sentenced him to nineteen years' imprisonment on each count to run concurrently and also concurrent with an existing state-court sentence of twenty to forty years previously imposed for illegal possession of narcotics.

On April 1, 1970, pursuant to Title 28, U.S.C.A. § 2255, defendant filed motions to vacate the judgments of conviction and sentence imposed February 3, 1969. The sole basis for such motions was that the district court failed to advise defendant, as required by Rule 11, Federal Rules of Criminal Procedure, Title 18, U.S.C.A., that as a consequence of his pleas, he would be ineligible for parole.⁵ Both motions were denied without an evidentiary hearing and these appeals followed. We reverse.

Rule 11, supra, as amended effective July 1, 1966, provides that the court shall not accept a guilty 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." The question before us is whether ineligibility for parole is a "consequence" of a guilty plea about which a district court must address the defendant before accepting such plea.

Although several circuits have considered this question, we have not yet determined this precise issue. The Government relies heavily on a case cited by the district court in support of its decision, Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964).⁶ Smith arose from the fourth in a series of § 2255 motions, the effect of which would permit the withdrawal of defendant's plea of guilty to charges of violations of the narcotics laws. Defendant had been sentenced to eight years' imprisonment following his guilty plea, although he could have been sentenced to a maximum of forty years.⁷ The basis asserted in his motion was that he was not told by the court, the clerk, court-appointed counsel or anyone else that he would not be eligible for probation or parole if a plea of guilty were entered. On brief, defendant attacked his court-appointed counsel for misleading him by representing that he could receive probation and by the failure to inform him of his ineligibility for parole. In the overall context of an allegation of ineffective assistance of counsel, the court considered the question of whether or not ineligibility for parole is a consequence of a plea of guilty. It characterized parole as a matter of legislative grace and held that noneligibility for parole is a consequence of the withholding of legislative grace, rather than a consequence of a plea of guilty.

In Munich v. United States, 9 Cir., 337 F.2d 356 (1964), a § 2255 proceeding, the court without citation of authority or supporting reasoning decided that if one is not aware of his ineligibility for parole or probation, he does not plead guilty with an understanding of the consequences of such plea.

The Fifth Circuit first considered this issue in Trujillo v. United States, 5 Cir., 377 F.2d 266 (1967). Trujillo and co-defendant Perez pleaded guilty to two counts of a three-count narcotics indictment. At the sentencing proceeding a week later, the district court, in the presence of Trujillo, advised Perez that he would not be eligible for parole. In affirming the district court's denial of the § 2255 motion to vacate the two concurrent ten-year sentences, the court accepted the rationale of Smith, supra, and analogized parole ineligibility to such collateral consequences of a guilty plea as loss of passport, deportation, loss of voting privileges and an undesirable discharge from the armed services. Trujillo, supra at 268-269.

In Durant v. United States, 1 Cir., 410 F.2d 689 (1969), the First Circuit rejected the rationale of Smith and Trujillo. In a § 2255 motion to vacate sentence or in the alternative to withdraw his guilty pleas to narcotics charges, Durant alleged that when he pleaded guilty he did not know he would be ineligible for parole; that he was advised by his attorney that parole would be available; and that had he known that parole was unavailable, he would not have pleaded guilty.⁸ The court rejected the argument advanced in Smith and Trujillo that parole is merely a matter of legislative grace which may be administratively granted or withheld and therefore not within the ambit of Rule 11, since such argument failed to distinguish between availability of parole and eligibility for parole. The Congressional removal of all hope for parole was characterized as in the nature of an additional penalty. The court further pointed out that the collateral consequences referred to by the Fifth Circuit in Trujillo were all civil in nature, while parole goes directly to the length of time a defendant is to be incarcerated. It then held that ineligibility for parole is a consequence of a guilty plea and a defendant should be advised of such ineligibility prior to the district court's acceptance of a plea of guilty pursuant to Rule 11.

Likewise in Berry v. United States, 3 Cir., 412 F.2d 189 (1969), the court in reversing and remanding with directions⁹ the district court's denial of a § 2255 motion to vacate, held that one who is not aware of the fact that he would not be eligible for parole, at the time of entering a guilty plea, does not plead with an understanding of the consequences of such plea. The court reasoned that parole is a concept which our society accepts as a natural incident of rehabilitation during imprisonment. It concluded, therefore, that the effect of ineligibility for parole is an inseparable ingredient of the punishment imposed and such ineligibility translates the term of actual imprisonment into a period three times as long as that ordinarily expected.

The Fifth Circuit was again confronted with the problem in Sanchez v. United States, 5 Cir., 417 F.2d 494 (1969). The court felt compelled to follow its previous decision in Trujillo, supra, although it appeared quite reluctant to do so. The court stated at 496-497, "Were the question of parole ineligibility before this Court for the first time, the considerable appeal of these recent decisions Durant andBerry might persuade us to a like position. * * * This panel being impotent to overrule Trujillo we abide and apply its edict."

In Jenkins v. United States, 10 Cir., 420 F.2d 433 (1970), defendant alleged in his § 2255 motion that he was unaware of his ineligibility for probation or parole following his plea of guilty. The district court, relying on the reasoning in Smith, supra, denied the motion without an evidentiary hearing. The Tenth Circuit accepted the rationale of Berry, supra, and reversed, holding that loss of probation and parole is a consequence of defendant's guilty plea within the meaning of Rule 11.

The latest consideration given by the Fifth Circuit to the proposition in issue occurred in Spradley v. United States, 5 Cir., 421 F.2d 1043 (1970). The district court had accepted defendant's guilty plea at the sentencing hearing, two and one-half weeks after it was entered. At such hearing the court advised the defendant of the mandatory five-year minimum sentence. It then went on to say:

"`And that would mean that after you have served one-third of the sentence if you behave yourself and I don\'t know any reason why you can\'t and certainly you have every incentive in the world to behave yourself from now on out.\'" Id. at 1044.

The court of appeals treated such statement, although unconcluded, as referring to the possibility of parole at the end of twenty months. Following the district court's denial of two Rule 11-based § 2255 motions without evidentiary hearings, the court of appeals reversed, stating, "In short, the First and Third Circuits would say that `understanding the consequences of a guilty plea' requires a personal explanation of anything which affects the length of detention. This appears to be the better view." Id. at 1046.¹⁰ The opinion expressly restricts Trujillo,supra, to its bare facts and distinguishes Sanchez,supra, because of the trial court's misleading statements to defendant Spradley.

In Harris v. United States, 6 Cir., 426 F.2d 99 (1970), defendant alleged in his § 2255 motion to vacate that the trial judge should have told him that as a result of his plea of guilty to a narcotics offense he would be precluded from parole; that he had no idea that he would receive a sentence...