USA. v. Fernandez, 98-1146

• Citation: 205 F.3d 1020
• Decision Date: 09 March 2000
• Docket Number: No. 98-1146,98-1146
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Guillermo Fernandez, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

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205 F.3d 1020 (7th Cir. 2000) United States of America, Plaintiff-Appellee,
v.
Guillermo Fernandez, Defendant-Appellant. No. 98-1146 In the United States Court of Appeals For the Seventh Circuit Argued November 29, 1999
Decided March 9, 2000

Appeal from the United States District Court for the Southern District of Illinois. No. 96-CR-40087--William L. Beatty, Judge.

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Copyrighted Material Omitted

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Before Bauer, Easterbrook, and Evans, Circuit Judges.

Bauer, Circuit Judge.

One month after pleading not guilty to a one-count indictment charging him with conspiracy to distribute marijuana, Guillermo Fernandez ("Fernandez") changed his mind and pleaded guilty. The district court then sentenced Fernandez to 235 months in prison for his role in the conspiracy. On appeal, Fernandez argues that his guilty plea and ensuing sentence should be vacated because of errors committed during his change of plea hearing. Because we conclude that the district court did not properly inform Fernandez of his rights at his change of plea hearing, we vacate Fernandez' conviction and sentence and remand so Fernandez may enter a new plea.

I. Background

On October 23, 1996, a federal grand jury in the Southern District of Illinois returned a one- count indictment charging Fernandez and four others with conspiring to distribute marijuana in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. The indictment alleged that Fernandez participated in a conspiracy to transport approximately 453 kilograms¹ of marijuana from southern Texas to points in Kentucky and Illinois. According to the conspirators' plans, about half of the marijuana was to be delivered to Fernandez or his agents in Louisville, Kentucky and the other half was supposed to be shipped to a co-conspirator in Chicago, Illinois. Shortly after the marijuana shipment left Texas, it was discovered by police in Marion, Illinois when the driver of the tractor trailer carrying the drugs stopped at a truck weigh station.

Fernandez was arraigned on July 1, 1997 and entered a plea of not guilty. One month later, on August 1, 1997, Fernandez pleaded guilty to the conspiracy at a change of plea hearing. Fernandez promptly told his lawyer that he was willing to plead guilty, but there was no plea agreement arrived at between the government and him. Because Fernandez' native language is Spanish and he understands very little English, an interpreter was present at the hearing to translate the

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proceedings into Spanish for Fernandez and to relay his responses to the court in English.

During the change of plea hearing, Fernandez' court-appointed lawyer, John Stobbs ("Stobbs"), took the position that Fernandez would be subject to a prison sentence between 70 and 108 months under the Guidelines. In contrast to Stobbs' sentencing calculation, the Assistant United States Attorney estimated Fernandez' potential jail time between 210 and 262 months. According to the government, Fernandez faced this substantially harsher penalty because, although the indictment only alleged a marijuana shipment of 453 kilograms, the entire conspiracy actually involved 3,000 kilograms of marijuana. Adding this relevant conduct to Fernandez' base offense level, and tacking on an upward adjustment for being a leader or organizer in the conspiracy, the government concluded that Fernandez faced at least 210 months in prison under the Guidelines. The district court told Fernandez that it would not resolve the dispute over his sentence at the change of plea hearing, but said that the disagreement would be settled at his sentencing hearing. After listening to a factual basis for the plea, the district court accepted Fernandez' guilty plea and found him guilty as charged in the one-count indictment.

Not long after the change of plea hearing, Stobbs moved to withdraw as Fernandez' attorney. As a basis for the motion, Stobbs cited a previously undisclosed conflict of interest; it turned out that Stobbs also represented an alleged co-conspirator named in the same indictment charging Fernandez. The district court relieved Stobbs from the appointment and named attorney David Williams ("Williams") to serve as Fernandez' new lawyer. Shortly after the court appointed Williams, Fernandez filed a motion to withdraw his guilty plea on the grounds that he did not understand the full extent of the charges against him or the penalties that could be imposed.

The district court held a hearing on Fernandez' motion to withdraw his guilty plea. When asked at that hearing whether he had understood everything Stobbs had told him, Fernandez testified, "Not everything. I thought I was pleading guilty partially." In response to the question of whether he understood Stobbs' statements at the change of plea hearing regarding the offense levels set forth by the Guidelines, Fernandez said, "I didn't really understand exactly what those levels meant." Later, when communications between the court and Fernandez broke down because of the language barrier, the court interpreter interrupted by stating:

Your honor, I am quite confused here. He's talking about that he was feeling guilty or he understood that these 3,000 [kilograms] related to the case that had to do with the trailer, and he didn't think that there was anything else that was going to be brought as a charge. And that is what he didn't understand exactly, that the amounts that he was going to be charged for were an overall count.

In response to the interpreter's interjection, the district judge told Fernandez that he would have the opportunity to contest his liability for the 3,000 kilograms of marijuana at his sentencing hearing. Based on that representation, Fernandez withdrew his motion and agreed to allow his guilty plea to stand.

At the sentencing hearing, the district court attributed to Fernandez a quantity of marijuana "in excess of 1,759 kilograms, but less than 3,000 kilograms." The court also found that Fernandez was an organizer or leader in the conspiracy. Based on these findings, Fernandez earned a Guidelines offense level of 36. Fernandez' criminal history category under the Guidelines was I, which meant that his range of incarceration was 188 to 235 months. Judge Beatty opted for the high-end of the range and sentenced Fernandez to 235 months in prison. The district court also sentenced Fernandez to five years of supervised release,

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a $2,000 fine, and a $50 special assessment. Fernandez then filed a timely notice of appeal.

On appeal, Fernandez challenges the manner in which the district court conducted his change of plea hearing. According to Fernandez, the district court failed to adequately apprise him of the nature of the charge against him. Fernandez also contends that the district court failed to advise him of the applicable mandatory minimum prison sentence.² Fernandez insists that these errors violate Rule 11 of the Federal Rules of Criminal Procedure ("Rule 11") and require that his guilty plea and resulting sentence be vacated.

II. Analysis

By pleading guilty to a criminal charge, a defendant waives several fundamental constitutional guarantees. Because a defendant sacrifices these critical rights, both due process and Rule 11 require that a defendant's guilty plea be made voluntarily and knowingly. United States v. Elkins, 176 F.3d 1016, 1021 (7th Cir. 1999). Rule 11 is meant to ensure that a defendant's guilty plea is "a voluntary and intelligent choice among the alternative courses of action open to him." United States v. Saenz, 969 F.2d 294, 296 (7th Cir. 1992). On appeal, we consider whether, when looking at the totality of circumstances surrounding the plea, the district court informed the defendant of his rights. United States v. Richardson, 121 F.3d 1051, 1057 (7th Cir. 1997); United States v. Wagner, 996 F.2d 906, 912 (7th Cir. 1993).

The applicable portions of Rule 11 provide that:

(c) 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 the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense; and . . . .

Fed. R. Crim. P. 11(c)(1). Rule 11, however, creates a harmless error exception by declaring that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 11(h). "The harmlessness inquiry naturally should focus on 'whether the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.'" United States v. Padilla, 23 F.3d 1220, 1221 (7th Cir. 1994) (quoting United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en banc)).

A. Nature of the Charge

Rule 11 states that "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 nature of the charge to which the plea is offered." Fed. R. Crim. P. 11(c)(1). Although Rule 11's language demands that the trial judge personally inform the defendant of the nature of the charge to which he is pleading guilty, this court does not require "literal compliance" with the Rule. See United States v. LeDonne, 21 F.3d 1418, 1423-24 (7th Cir. 1994); United States v. Musa, 946 F.2d 1297,

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1302 (7th Cir. 1991). Instead, when determining...