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, 1999Decided March 9, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  No. 96-CR-40087--William L. Beatty, Judge. [Copyrighted Material Omitted]
Before Bauer, Easterbrook, and Evans, Circuit  Judges.
Bauer, Circuit Judge.


1
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

2
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.


3
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 proceedings into Spanish for  Fernandez and to relay his responses to the court  in English.


4
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.


5
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.


6
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:


7
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.


8
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.


9
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, a $2,000 fine, and a $50  special assessment. Fernandez then filed a timely  notice of appeal.


10
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

11
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).


12
The applicable portions of Rule 11 provide  that:


13
(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:


14
(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 .  . . .


15
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

16
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  1297,1302 (7th Cir. 1991). Instead, when  determining whether a defendant understands the  nature of the crime to which he is admitting  guilt, we have approved practices in which  prosecutors identify the elements of the charged  offense followed with an inquiry by the court  confirming the defendant's understanding of the  crime. See LeDonne, 21 F.3d at 1424. Similarly,  we have recognized the validity of having  prosecutors recount the specific facts which  satisfy the elements of the charged offense  followed by an admission of those facts by the  defendant under questioning by the trial judge.  Id.


17
Unless the defendant fully comprehends the  elements of the crime to which he is confessing,  "his plea cannot be said to have been knowingly  and voluntarily entered." LeDonne, 21 F.3d at  1423 (citing Musa, 946 F.2d at 1303). To  determine whether the defendant fully understands  the nature of the charge to which he is admitting  guilt, we have adopted a totality of the  circumstances approach. Under this test, we  consider (1) the complexity of the charge; (2)  the defendant's level of intelligence, age, and  education; (3) whether the defendant was  represented by counsel; (4) the judge's inquiry  during the plea hearing and the defendant's  statements; and (5) the evidence proffered by the  government. LeDonne, 21 F.3d at 1423; Musa, 946  F.2d at 1304.


18
In this case, the district court engaged in the  following colloquy to verify whether Fernandez  understood the nature of the drug conspiracy  charge to which he was pleading guilty:


19
THE COURT:  Okay. Now you are here in court with  your lawyer and I want to talk now about some of  the rights that you have and a little bit about  what this case is about. Have you read the  indictment in this case?


20
THE INTERPRETER:  Yes, I have.


21
THE COURT:  Did you read it yourself, or did you  have someone read it to you?


22
THE INTERPRETER:  My attorney read it to me.


23
THE COURT:  And your attorney speaks Spanish does  he?


24
THE INTERPRETER:  Yes.


25
THE COURT:  Did you understand what he said to  you when he read it to you?


26
THE INTERPRETER:  Yes.


27
THE COURT:  And did you--did he answer any  questions that you had about the indictment?


28
THE INTERPRETER:  Yes.


29
THE COURT:  So do you understand then what you  are charged with here in the court today?


30
THE INTERPRETER:  Yes, sir.


31
THE COURT:  Are there any questions at all about  anything in this indictment you have?


32
THE INTERPRETER:  No.


33
While this discussion is somewhat helpful in  evaluating whether Fernandez understood the  conspiracy charge, it does not end our inquiry.  We have repeatedly held that simply asking a  defendant if he has read and discussed the  indictment with his attorney is insufficient to  determine if he truly understands the nature of  the charge against him. See LeDonne, 21 F.3d at  1424; United States v. Ray, 828 F.2d 399, 410  (7th Cir. 1987); United States v. Darling, 766  F.2d 1095, 1098 (7th Cir. 1985).


34
Perhaps recognizing that questioning Fernandez  about whether he read and understood the  indictment was not enough, the district court  also asked the AUSA to provide a factual basis  for the plea, which she did. During that factual  proffer, the AUSA described the specific acts  committed by several individuals to transport the  453 kilograms of marijuana from southern Texas to  its intended destinations in Kentucky and  Illinois. The AUSA described the planned  distribution of the contraband and named the  individuals who worked for Fernandez. Finally,  the prosecutor gave the factual basis for the  government's contention that Fernandez was a  leader of the conspiracy and its assertion that  Fernandez should be held accountable for amounts  of marijuana in excess of that charged in the  indictment.


35
At the conclusion of the government's factual  proffer, the district court and Fernandez had the  following exchange:


36
THE COURT:  Well, now, with the exception of the  last part about the relevant offense conduct  being 3,000 kilograms, and the bit about you're  [sic] being a leader or manager, the other  statement that she made about that you did in  connection with the drug transaction and your  part in the drug transaction, factually, did you,  in fact, do the things that she says you did?


37
THE INTERPRETER:  Not all of the acts, partially.


38
THE COURT:  What acts didn't you do?


39
THE INTERPRETER:  Yes, your Honor, I did.


40
THE COURT:  He did those things?


41
THE INTERPRETER:  Yes.


42
THE COURT:  Okay. That's what you're pleading  guilty to. Do you understand that?


43
THE INTERPRETER:  Yes, your Honor.


44
Following this colloquy, the court accepted the  guilty plea and adjudged Fernandez guilty of the  offense charged in the indictment.


45
Although this is a close case, we cannot  conclude that Fernandez was fully aware of the  nature of the crime to which he pleaded guilty.  Applying the five factors identified in LeDonne,  21 F.3d at 1423, it is not at all clear from this  record that Fernandez' guilty plea was knowing  and voluntary. Rather, under our totality of the  circumstances approach, we find this guilty plea  enveloped in confusion and misunderstanding.  Additionally, it appears from the record that the  district court fell short of fulfilling its  obligations under Rule 11.


46
The charge against Fernandez was conspiracy to  distribute marijuana. While a drug conspiracy  charge may seem simple or commonplace to well-  educated prosecutors, defense attorneys, and  judges who deal with them on a daily basis, "the  charge of 'conspiracy' is not a self-explanatory  legal term or so simple in meaning that it can be  expected or assumed that a lay person understands  it." United States v. Wetterlin, 583 F.2d 346,  350 (7th Cir. 1978). Fernandez is a native of  Mexico, has only a fifth grade education, and  understands very little English. Aside from one  charge for driving under the influence of  alcohol, Fernandez had never before been charged  with a crime. These facts strongly suggest that,  like most lay people, Fernandez would not  understand the term "conspiracy" without some  further explanation. Based on the complexity of  the charge and Fernandez' lack of education or  familiarity with the criminal justice system, the  first two factors articulated in LeDonne favor a  finding that Fernandez did not fully understand  the nature of the conspiracy charge to which he  was admitting guilt. See United States v.  Longoria, 113 F.3d 975, 977 (9th Cir. 1997)  (guilty plea "cannot be truly voluntary unless  the defendant possesses an understanding of the  law in relation to the facts") (citations  omitted).


47
Turning to the third factor, although Fernandez  was represented by attorney Stobbs at his change  of plea hearing, Stobbs provided representation  that left much to be desired. Mainly, Stobbs had  a very serious conflict of interest that he  failed to disclose to Fernandez. Notwithstanding  his knowledge of this conflict, Stobbs  represented Fernandez from indictment to guilty  plea and may well have given Fernandez advice  that convinced him to plead guilty. Although the  record does not disclose whether Fernandez'  guilty plea benefitted Stobbs' other client, any  conflict of interest during the vital period in  which a defendant is deciding whether to plead  guilty is a serious transgression. The upshot of  these facts is that while Fernandez did have  counsel to advise him, we cannot say with any  degree of certainty that his counsel's assistance  was more helpful than harmful.


48
The fourth factor, the depth and clarity of the  discussion between the trial judge and the  defendant concerning the nature of the charge,  illustrates that Fernandez experienced  substantial confusion over the crime to which he  was admitting guilt. For example, when the  district court asked Fernandez if he had done the  things set forth in the AUSA's factual proffer,  Fernandez responded, "Not all of the acts,  partially." When asked which acts he didn't  commit, Fernandez changed his answer and replied,  "Yes, your Honor, I did." In response to this new  and drastically different answer, the district  judge bypassed Fernandez altogether and  questioned the interpreter directly by asking,  "He did those things?" To which the interpreter  answered "yes." The confusion over precisely what  acts Fernandez admitted continued at the hearing  on his motion to withdraw the guilty plea. During  that hearing, the trial court asked Fernandez if  he had understood everything that Stobbs had told  him at the change of plea hearing and Fernandez  responded, "Not everything. I thought I was  pleading guilty partially."


49
In short, Fernandez' accounts of what acts he  admitted and those he denied were very murky.  Based on this record, it is impossible to  ascertain precisely what acts Fernandez admits  and which he denies. Fernandez twice told the  district court that he was only "partially"  guilty. However, without further investigatory  questions to flush out the details of Fernandez'  participation in the conspiracy, the district  court accepted the guilty plea. Because we cannot  glean a clear understanding of Fernandez'  participation in the crime charged, it is  impossible to determine whether Fernandez himself  understood the nature of the crime to which he  was pleading guilty.


50
The final factor in our totality of the  circumstances approach requires us to analyze the  government's proffered evidence. We find the  government's factual proffer detailed and,  normally, it would probably be sufficient to  secure Fernandez' guilty plea. The facts show,  however, that this was anything but an ordinary  change of plea hearing. Fernandez' attorney had  a serious conflict of interest; there was no  written and signed plea agreement with the  government; and the language barrier between  Fernandez and the district judge caused  substantial confusion during the hearing--so much  confusion that the district court resorted to  questioning the interpreter rather than  Fernandez. Neither the district court nor the  AUSA ever explained the nature of the crime of  conspiracy to Fernandez. Additionally, Fernandez  changed his responses to whether he had, in fact,  committed the acts that the AUSA related in the  factual proffer. And, no one bothered to clarify  the ambiguity with detailed follow-up questions  to determine whether Fernandez understood that he  had committed acts that rendered him guilty of  conspiracy to distribute marijuana. While there  was nothing wrong with the AUSA's factual proffer  on its face, the surrounding chaos at this change  of plea hearing significantly negated any  confidence in Fernandez' understanding of and  admission to those facts.


51
Because a defendant's clear understanding of the  nature of the charge to which he is pleading  guilty relates to the very heart of the  protections afforded by the Constitution and Rule  11, we cannot conclude that the error in this  case was harmless. Instead, our review of this  record leads us to believe that allowing  Fernandez' guilty plea in this case to stand  would deprive him of substantial constitutional  rights.

B.  Mandatory Minimum Sentence

52
Fernandez also complains that the district court  failed to adequately inform him of the applicable  mandatory minimum sentence. The government's  initial response to this argument is that  Fernandez has waived the issue. We find the  government's position unpersuasive. In his motion  to withdraw the guilty plea, Fernandez stated  that he did not understand "the penalties which  could be assessed." This statement adequately  preserved his argument that the district court  never advised him of the mandatory minimum  sentence which a guilty plea would trigger. Even  if Fernandez had not properly preserved the  issue, he could not have waived it. This court  has previously treated Rule 11 objections with  "extra solicitude" and held that "a claim of non-  compliance with Rule 11(d) will not be deemed  waived if a party fails to present it in the  district court." United States v. Cross, 57 F.3d  588, 590 (7th Cir. 1995) (citing United States v.  Ruiz-del Valle, 8 F.3d 98, 102 (1st Cir. 1993);  United States v. Young, 927 F.2d 1060, 1061 (8th  Cir. 1991); United States v. Coronado, 554 F.2d  166, 170 n.5 (5th Cir. 1977)). Although Cross  addressed the protections afforded by Rule 11(d)  rather than Rule 11(c), we can conceive of no  principled reason to treat the important rights  afforded by these subsections any differently.


53
Since we find that Fernandez preserved the  matter for appellate review, we consider the  merits of his argument that the district court  failed to advise him of the applicable mandatory  minimum. This court explained the law governing  this issue in United States v. Padilla, 23 F.3d  1220, 1222 (7th Cir. 1994):


54
Failure to inform a defendant about applicable  mandatory minimums can be, but is not  necessarily, a serious oversight. The inquiry is  fact bound. If, for instance, the record  discloses that a defendant was aware when  pleading guilty that the sentencing guidelines  would subject him to a sentence well in excess of  any statutory mandatory minimum likely applicable  to his case, the failure to advise him of such  minimums during the plea hearing cannot  reasonably be said to have affected his decision  to accept the plea. On the other hand, where it  is not clear that a defendant was aware of the  sentencing guideline range into which his  relevant conduct would likely fall, the failure  to inform him of the probable applicability of  statutorily mandated minimums may well have  impaired his ability to understand his situation  fully. The relevant inquiry must center upon what  the defendant actually knows when he pleads  guilty--and without an affirmative indication in  the record we cannot assume that he knows  anything about the sentence restrictions he  faces--, what information would have been added  (or what corrections made) to his pool of  knowledge by compliance with Rule 11 demands, and  how the additional or corrected information would  have likely affected his decision making.


55
Padilla, 23 F.3d at 1222 (citations omitted). The  court went on to explain that problems often  develop in cases such as this one, where a  defendant's sentence will depend on a calculation  of drug quantity that is not determined until  after the plea process is completed. Id. at 1223.  Therefore, "any information the district court  could present the defendant about potential  minimum and maximum penalties is typically  somewhat speculative. This, however, cannot  relieve the court of its responsibility to make  a defendant aware of his likely exposure." Id. at  1224.


56
Like the other colloquy at his change of plea  hearing, the conversation concerning Fernandez'  potential sentence was consumed by confusion.  When asked by the district court for an initial  sentencing calculation under the Guidelines,  Stobbs estimated Fernandez' potential prison time  somewhere between 70 and 108 months. In stark  contrast, the government projected that under the  Guidelines Fernandez would have to serve between  210 and 262 months. After hearing the respective  positions about Fernandez' sentence under the  Guidelines, the district court engaged Fernandez  in the following colloquy regarding his potential  sentence:


57
THE COURT:  What's the maximum; not under the  Guidelines but statutory?


58
[AUSA]:  Statutory maximum is life. This carries  a ten-year to life.


59
THE COURT:  All right. So Mr. Fernandez there has  been no agreement between your lawyer and the  Government's lawyer. So if you're gonna plead  guilty you should plead guilty understanding that  you could be, you could be, sentenced up to life  in the federal penitentiary. Do you understand  that?


60
THE INTERPRETER:  Yes.


61
THE COURT:  You can also take into consideration  that the Government's position is that you would  be--under the Guideline Act would be sentenced to  a sentence of between 210 to 262 months. Do you  understand that?


62
THE INTERPRETER:  Yes.


63
THE COURT:  Now you're [sic] lawyer is going to  argue that it should be something less than that.  And he will make arguments and put on evidence to  support that. [The AUSA] representing the  Government will be arguing that it should be 262  months; which is twenty-some-odd years. Do you  understand that?


64
THE INTERPRETER:  Yes.


65
THE COURT:  And you want to plead guilty under  those circumstances?


66
After this question, Stobbs interrupted the  court and stated Fernandez' desire to talk to the  government and make a factual proffer in an  effort to receive a reduced sentence. In response  to this interruption, the AUSA expressed a  willingness to listen to what Fernandez had to  say, but declined to promise him a lesser prison  sentence. The district court then resumed  advising Fernandez of his potential jail time by  stating:


67
THE COURT:  Mr. Fernandez, I want to make it very  clear to you. If you plead guilty here today I'm  going to have a Presentence Report prepared.  Someone will check into your background and go  into all the facts of the case and your family  and your employment and all those things. And  I'll have that and you'll get a copy of it;  you'll see it. And then when you come back up  here in two or three months to be sentenced, I'll  listen to whatever argument the Government wants  to make and whatever argument you want to make  and whatever evidence anybody wants to put on.  And when I've done all that you may very well get  262 months in the penitentiary. I want to be  sure--this isn't just stuff I'm saying. If you're  going to plead guilty you got [sic] to understand  that you may--and do it on the assumption that  you will get 262 months. I don't want you  pleading guilty--I mean, I don't want you doing  this thinking you're going to get the low end of  the deal. You may get the worst end of the deal.  And if you don't want to do it that way then  don't plead guilty. Plead not guilty and go to  trial.


68
And your lawyer isn't going to serve this time.  At 262 months or the 160, whatever it is,  regardless of what it is, Mr. Stobbs will not  serve that time. You will. So it's a decision  that you have to make. You can consider his  advice and you should. You should listen to him  and consider his advice; but, in the final  analysis it's your decision to make and you will  serve the time. So, you still want to plead  guilty?


69
THE INTERPRETER:  Yes.


70
While the district court was careful to advise  Fernandez of his potential statutory maximum and  his high-end sentence under the Guidelines, there  was no mention of a mandatory minimum sentence.  Rather, as is readily apparent from the foregoing  colloquy, the district judge never informed  Fernandez that by pleading guilty he would  trigger a mandatory minimum prison sentence.3  Under the applicable statutes, if the district  court held Fernandez accountable for the 453  kilograms of marijuana charged in the indictment,  then his mandatory minimum sentence would have  been 5 years. See 21 U.S.C. sec. 841(b)  (1)(B)(vii) ("In the case of a violation . . .  involving 100 kilograms or more of a mixture or  substance containing a detectable amount of  marijuana . . . such person shall be sentenced to  a term of imprisonment which may not be less than  5 years . . ."). On the other hand, if Fernandez  were ultimately found responsible for the alleged  relevant conduct--up to 3,000 kilograms of  marijuana, according to the government--then his  statutory minimum would have increased to 10  years. See 21 U.S.C. sec. 841(b)(1)(A)(vii) ("In  the case of a violation . . . involving 1,000  kilograms or more of a mixture or substance  containing a detectable amount of marijuana . .  . such person shall be sentenced to a term of  imprisonment which may not be less than 10 years  . . ."). Regardless of which statute was  eventually triggered by the district court's  findings at the sentencing hearing, it appears  that neither the trial court nor Fernandez'  attorney ever informed him of their mandatory  application.


71
This case fits squarely into the situation  contemplated in Padilla. There is nothing to  suggest that Fernandez was ever alerted to the  mandatory minimum sentences applicable in his  case. Additionally, the drug quantity  attributable to Fernandez was disputed and not  known at the time of the guilty plea. And,  Fernandez' attorney represented to Fernandez and  to the court that Fernandez' Guideline range of  incarceration could be as low as 70 to 108  months. Thus, under these circumstances, it was  "not clear that [Fernandez] was aware of the  sentencing guideline range into which his  relevant conduct would likely fall, [and] the  failure to inform him of the probable  applicability of statutorily mandated minimums  may well have impaired his ability to understand  his situation fully." Padilla, 23 F.3d at 1222.


72
The error in this case cannot be brushed aside  as harmless. As the court noted in Padilla, the  "relevant inquiry must center upon what the  defendant actually knows when he pleads guilty."  Id. Here, Fernandez knew only that his sentence  was disputed and that it would ultimately fall  somewhere between 70 months and 262 months. Aside  from this, all Fernandez knew was that he would  have the opportunity to present evidence and make  his arguments concerning his sentence at the  sentencing hearing. Because the disparity between  what Fernandez knew to be the lowest sentence he  could receive (70 months) and the undisclosed  ten-year mandatory minimum sentence (120 months)  is so great, Fernandez' decision to plead guilty  could not have been fully informed of the  penalties he faced. As the court put it in  Padilla, "we think it patent that the failure to  inform a defendant of a mandatory five-year or  ten-year minimum sentence cannot be deemed  inconsequential to the decision to plead when no  firm indication exists of the defendant's  specific awareness at time of plea that a  sentence of such an order is likely." Padilla, 23  F.3d at 1223.

III.  Conclusion

73
For the foregoing reasons, we vacate Fernandez'  conviction and sentence and remand this case to  the district court so Fernandez may enter a new  plea.



Notes:


1
 The indictment alleges that the shipment of  marijuana was "approximately 1,000 pounds." One  thousand pounds equals about 453 kilograms in the  metric system of weight measurement. Since the  United States Sentencing Guidelines refer to drug  weight quantities in terms of the metric system,  we will use the metric weights rather than the  English weight system employed in the indictment.


2
 Fernandez also argues that the trial court did  not properly inform him of his right to a jury  trial because the district court never used the  term "jury" when advising him of his rights.  Because we find that the district court failed to  properly inform Fernandez of the nature of the  charge to which he pled guilty and the applicable  mandatory minimum sentences, we do not reach this  argument.


3
 The government argues that Fernandez was advised  on the ten-year mandatory minimum that applied in  his case because, in response to a question about  the maximum possible sentence from the court, the  AUSA said, "Statutory maximum is life. This  carries a ten-year to life." We find this  argument unpersuasive. First, this statement was  nothing more than a passing comment made by a  prosecutor. Second, the prosecutor directed the  statement to the judge, not to Fernandez. And,  third, the remark was given in response to a  question about the statutory maximum, not the  statutory minimum. Under these circumstances, it  would be manifestly unfair to attribute knowledge  of the ten-year mandatory minimum to Fernandez.


