                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0423n.06

                                           No. 11-6409                                  FILED
                                                                                     Apr 29, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )       ON APPEAL FROM THE
                                                   )       UNITED STATES DISTRICT
v.                                                 )       COURT FOR THE EASTERN
                                                   )       DISTRICT OF KENTUCKY
DARRELL B. PATRICK,                                )
                                                   )
       Defendant-Appellant.                        )


BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.

       MERRITT, Circuit Judge. In this direct appeal, we review the validity of defendant

Darrell Patrick’s plea of guilty to drug and firearm charges. Defendant requests withdrawal of

his guilty plea and a remand to the district court because his plea was not knowing and voluntary.

During the plea hearing, the magistrate judge did not state the mandatory minimum penalty that

defendant faced for the firearm charge. Such an omission is a violation of the plain language of

Federal Rule of Criminal Procedure 11(b)(1)(I), which states that “the court must inform the

defendant of, and determine that the defendant understands,” any mandatory-minimum sentence

he faces. We hold that the failure to ensure that defendant understood that he faced a mandatory-

minimum sentence of five years for the firearm charge affected his substantial rights and we

vacate and remand to the district court.

                                             I. Facts
United States v. Patrick
No. 11-6409

       The facts are straightforward and not in dispute. Six controlled buys of oxycodone were

made from defendant at his residence in Magoffin County, Kentucky, between August and

October 2009. Each buy involved between two and four pills. During the last buy, the buyer,

who was an informant for the government, saw defendant retrieve the oxycodone pills from a

gold-colored container. During a search of defendant’s house the next day, the gold-colored

container was found in a safe with six oxycodone tablets and 68 firearms. Defendant was

indicted on charges of distributing, and possessing with intent to distribute, oxycodone, as well

as two firearm charges. Defendant entered into a plea agreement where he pleaded guilty to one

count of distribution in violation of 21 U.S.C. § 841(a)(1), one count of possession with intent to

distribute in violation of 21 U.S.C. § 841(a)(1), and one count of possessing a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). In exchange, the

government dropped six of the nine charges. The firearm charge carried a mandatory minimum

penalty of 60 months that must run consecutively to any other sentence. Added to the range of

10-16 months for the drug charges,1 defendant’s guideline range was 70-76 months. The

sentencing judge varied downward on the drug charges and sentenced defendant to 60 months

and one day. Defendant did not object to his guilty plea or sentence below and he timely

appealed to this Court.

                                             II. Analysis




       1
           Defendant received an offense level of 12 and a criminal history category of I.

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United States v. Patrick
No. 11-6409

       Defendant challenges the voluntariness of his guilty plea to possessing firearms in

furtherance of a drug trafficking crime. He contends that the magistrate judge who accepted his

plea failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(I)2 by failing to properly

advise defendant that he faced a mandatory-minimum sentence of five years on the firearm

charge. The magistrate judge never correctly informed, nor made certain that defendant

understood, that the firearm charge under 18 U.S.C. § 924(c) carried a mandatory-minimum five-

year sentence that must run consecutively to any other term of imprisonment. After asking

defendant several questions and informing defendant of the rights he was relinquishing by

entering a plea, the magistrate judge said, “ I want to review with you again just briefly the

maximum penalties you face, sir, on a plea of guilty. And these are contained in your plea

agreement at paragraph 4 on page 3. . . . On Count 9, which is a charge of possession of a

firearm in furtherance of a drug trafficking crime, the maximum period of incarceration is not less

than five years. And that is a period of imprisonment that’s consecutive to any sentence imposed

on Counts 1 and 7. Do you understand that as well sir?” The defendant answer, “Yeah.”

Rearraignment (Plea) Hearing at18-19 (emphasis added). The magistrate judge should have said


       2
        Rule 11 Pleas
       ....
       (b) Considering and Accepting a Guilty or Nolo Contendere Plea

        (1) Advising and Questioning the Defendant. Before the court accepts a plea of
       guilty . . ., the defendant must be placed under oath and the court must address the
       defendant personally in open court. During this address, the court must inform the
       defendant of, and determine that the defendant understands, the following:
       ....
         (I) any mandatory minimum penalty . . . .

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No. 11-6409

that the minimum period of incarceration is not less than five years on the firearm charge. The

error on the part of the magistrate judge was made because he read from the plea agreement

itself, which is not a model of clarity. Rather than explicitly stating that the firearm charge

carried a mandatory-minimum sentence of five years, the plea agreement states “the maximum

statutory punishment for Count 9 is not less than 5 years nor more than Life imprisonment,

consecutive to a term of imprisonment for Count 1 or Count 9.” Plea Agreement at p.3, ¶ 4.

This confusing language from the plea agreement became an outright error when the magistrate

judge simply recited the first part of the sentence at the plea hearing without its ending, “The

maximum period of incarceration is not less than five years.”

       Compounding this error, the magistrate judge went on to say just moments later, “These

are the maximum penalties you face on each of these counts. Do you understand the maximum

penalties, Mr. Patrick?” Rearraignment (Plea) Hearing Tr. at 19 (emphasis added). The

magistrate judge then explained that the Guidelines would be used to “arrive at the correct

sentence” and that the defendant’s attorney would have the opportunity to argue for a more

lenient sentence. The magistrate judge concluded this portion of the colloquy with defendant by

saying, “I don’t know what your sentencing range might be. But whatever that range is under the

. . . Guidelines, the judge will have the discretion to sentence you within that range or based on

appropriate factors above or below that range.” Id. at 19-23. While this was all true as to the

drug charges, the magistrate judge never told defendant that the sentencing judge would have no

discretion to use the Guidelines and go below the mandatory minimum for the firearm charge.



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United States v. Patrick
No. 11-6409

       In addition, defendant’s own attorney may have mislead the defendant about the

mandatory term of imprisonment he faced. Prior to sentencing, defense counsel filed a

sentencing memorandum requesting that the court sentence defendant to “supervised probation.”

During the sentencing hearing, defense counsel requested “some kind of leniency” for defendant

and he seemed to be requesting supervised release instead of incarceration. Sentencing Hearing

Tr. at 7-9. During argument on behalf of his client, he told the court, “Some of the lawyers in the

Western District say that their judges have granted below mandatory minimums.” Id. at 9. Six

days after sentencing, defendant wrote to the district judge requesting that he “reconsider” the 60-

month sentence and place defendant on “home incarceration where I can work.” Letter to

District Court from Darrell Patrick. The statements by defendant’s attorney at the sentencing

hearing, combined with the filings by both defendant and his attorney, contribute to our view that

defendant may not have understood that he faced a mandatory-minimum sentence of five years

on the firearm charge.

       The plain-error standard requires that defendant demonstrate that the Rule 11 violation

affected his substantial rights. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en

banc). We recently reiterated that a “[f]ailure to ensure that the defendant understands the

mandatory minimum may . . . render a plea not voluntary, and a plea that is not voluntary is

undoubtedly an impairment of a defendant’s substantial rights.” United States v. Martin, 668

F.3d 787, 792 (6th Cir. 2012). Looking at the entire record, we cannot say that defendant’s plea

was voluntary. The confusing language in the plea agreement itself, the magistrate’s judge’s

erroneous statement during the hearing, and the suggestion that defendant’s attorney may not

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United States v. Patrick
No. 11-6409

have properly advised defendant that the district court lacked the discretion to sentence him

below the five-year mandatory minimum based on his statements during the sentencing hearing

about defendants in the Western District of Kentucky receiving sentences below the mandatory

minimum, all lead us to conclude that defendant may not have understood the sentence he faced.

When confronted with a Rule 11 error such as this one, the appropriate remedy is to vacate the

plea and remand to the district court.

       To affect defendant’s substantial rights requires that defendant “show a reasonable

probability that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004). The strength of the government’s case concerning

the firearm charge is also a consideration here. To prove a violation under 18 U.S.C. § 924(c),

the government must show that the defendant possessed the firearm to advance or promote the

underlying offense. There is no evidence in the record before us that defendant was armed

during any of the transactions where he sold oxycodone. The search warrant did not mention

firearms. The guns were found in a safe with the gold-colored container that the informant had

seen the previous day and from which defendant had retrieved oxycodone tablets. The proximity

of the gold-colored container containing oxycodone to the guns was the basis for the firearm

charges. There is evidence that defendant was a gun collector and that the guns in the safe were

collector’s items, not weapons that would be used in a street-level drug deal. While we do not

opine on the strength or weakness of the firearm charge, the evidence of actual gun use by

defendant in conjunction with a drug sale is not overwhelming on the record before us.



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United States v. Patrick
No. 11-6409

       In sum, the record lacks sufficient indicia that defendant actually understood that he faced

a mandatory-minimum sentence of five years as required by Federal Rule of Criminal Procedure

11(b)(1)(I), and the totality of the circumstances lead us to hold that defendant’s substantial

rights were affected.

                                            Conclusion

       Because we cannot say that defendant understood that his plea of guilty would result in a

mandatory-minimum sentence of five years, we remand to allow defendant to withdraw his plea.




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