                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                       June 14, 2006
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 05-30740



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

CHARLES KESSEE, also known as Bug,

                                           Defendant-Appellant.

                          ______________________

            Appeal from the United States District Court
                for the Western District of Louisiana
                       USDC No. 5:03-CR-50038-1
                        ______________________

Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Charles   Kessee    appeals    his   conviction    for   conspiracy      to

distribute cocaine, arguing that his guilty plea lacked a factual

basis.    Agreeing, we VACATE his conviction.

                                       I

      In April 2003, a federal grand jury indicted Charles Kessee on

one count of conspiracy to distribute five or more kilograms of

cocaine and one count of possession with intent to distribute an

unknown quantity of cocaine.        The trial began on March 1.          During


      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
the lunch break following jury selection, Kessee accepted the

Government’s offer that he plead guilty to conspiracy in exchange

for its promise not to seek a 20-year minimum sentence.1                 Kessee

had requested to plead guilty to possession, but the Government

insisted that he plead guilty to the conspiracy count instead.

     Because no written factual basis for the plea was prepared,

the Government established the factual basis at the guilty-plea

hearing through testimony of DEA Agent Lee Scott.             Scott testified

that a confidential informant purchased 62 grams of cocaine from

Kessee on October 8, 2002, and on the following day Kessee was

arrested as he was about to sell the informant another 123 grams in

his possession.       Scott testified further that he talked to three

federal inmates who had contacted him to implicate Kessee: Jerome

Bailey, who told Scott that Kessee bought two to three kilograms

from him every week and a half, Kenneth Gipson, who told Scott that

he and Kessee exchanged two kilograms every month from April 1998

to August 1999, and Anthony Adams, who told Scott that he and

Kessee exchanged half a kilogram every week for four months.

     Following       Scott’s    testimony     and    the   district     court’s

explanation of the elements of the offense, the court asked Kessee

if the Government could prove the conspiracy.              Kessee responded:

     KESSEE: My honest opinion, sir, no.

     THE COURT: And tell me why.


     1
         The minimum was predicated on Kessee’s 1991 conviction for possession of
crack.

                                        2
      KESSEE: I mean, in all honesty, I’m pleading guilty
      because of the fact that I feel like it would be — I
      mean, I have five kids, and for me to just take a chance
      to trial and lose and get my life thrown away — I mean,
      I just want to get back to my kids, that’s why I’m here.

      THE COURT: The quickest way you can —

      KESSEE: I just want to get back to my kids, that’s why I
      am pleading guilty. I’m not pleading guilty because I
      feel like they can prove this; I’m pleading guilty
      because I don’t want to put myself on no chopping block.
      I want to go back to my family.

      Turning to counsel, the court asked if Kessee was tendering an

Alford plea.2    Stating that the parties had not discussed an Alford

plea, defense counsel explained that during plea negotiations,

although Kessee had admitted possession but denied conspiracy, the

Government would accept only a guilty plea to conspiracy.                   With

Kessee silent in the background, defense counsel strenuously argued

to the court that the plea was in Kessee’s best interest because a

jury likely would convict him and, under the plea bargain, his

Guidelines sentence would be far less than the 20-year minimum the

Government was threatening.         Defense counsel asked the Government

to accept an Alford plea, but the Government refused and threatened

to withdraw the plea offer.

      After discussion between the court and counsel, in which

defense counsel stated that “there’s not much that has to be proven

in order to show a conspiracy,” the court suggested that Kessee had


      2
        See North Carolina v. Alford, 400 U.S. 25 (1970); Ballard v. Burton, 444
F.3d 391, 396-97 (5th Cir. 2006) (describing Alford plea, where defendant asserts
innocence but admits sufficient facts exist to convict, and its effects).

                                       3
admitted guilt to conspiracy: “[i]f he sold a dime’s worth of

cocaine   to   somebody   and    they    sold   it   to   somebody,   that’s

distribution, that’s conspiracy.” At defense counsel’s suggestion,

the court turned to Kessee and asked, “[h]ave you provided cocaine

to somebody for a price and knew they went out on the street and

sold it to someone else?”       When Kessee answered, “yes,” the court

stated, “[t]hen you’re guilty of conspiracy, and the court so

finds.”   After the Government expressed concern that Kessee needed

to admit to the five kilograms or more quantity alleged in the

indictment, the court replied that the requisite quantity was

established by virtue of his guilty plea to conspiracy.                 The

hearing concluded.

     By sentencing, on July 23, 2004, it had developed that the PSR

was recommending a Guidelines range of 24-30 years based on two

kilograms of crack, instead of the five kilograms of cocaine

alleged in the conspiracy count, something neither party had

anticipated at the guilty-plea hearing.         Defense counsel moved to

withdraw Kessee’s guilty plea.           Counsel explained that in his

insistent advocation of the plea, he had walked past the fact that

Kessee never admitted conspiracy.          The court denied the motion,

finding that Kessee did not adequately claim innocence, that he had

close assistance of counsel, that the plea was knowingly and

voluntarily made, and that the motion was untimely.              The court

adopted the PSR’s recommendation and sentenced Kessee to the



                                     4
Guidelines minimum of 292 months.3

      On January 18, 2005, Kessee filed pro se a motion under §

2255, arguing that his plea was not knowingly and voluntarily made

and that his trial counsel was ineffective, including in failing to

appeal as Kessee had requested.           On June 21, the court found that

Kessee was entitled to an out-of-time appeal and held his remaining

§ 2255 claims in abeyance.           Kessee appealed his conviction.

                                         II

      Under Federal Rule of Criminal Procedure 11, a factual basis

must support a guilty plea to avoid conviction of a defendant whose

admitted4     conduct   does   not     constitute   a   crime.   Accordingly,

“[i]mplicit in the district court’s acceptance” of a guilty plea is

its “determination that [the defendant’s] conduct satisfied every

legal element” of the charged crime.5          Although we review for clear

error the district court’s finding of a factual basis, a challenge

to the legal sufficiency of an undisputed factual basis, like the

challenge here, is a straightforward question of law, reviewed de

novo.6

      Kessee argues that he never acceded to the hearsay allegations



      3
        A Booker issue also permeated these proceedings and this appeal, but we
do not address it because we vacate Kessee’s conviction.

      4
          As we will explain, infra.
      5
          See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001).
      6
          See id at 314; United States v. Reasor, 418 F.3d 466, 474 (5th Cir.
2005).

                                         5
of Agent Scott, admitting only that at some time and in some place

he sold cocaine to someone he knew would re-sell it.                This, he

contends, is insufficient to establish a conspiracy because there

is no evidence of an agreement.7          More fundamentally, he argues,

even if mere selling were a conspiracy, Kessee’s admission was

insufficient to establish the specific conspiracy alleged in the

indictment; indeed, he explicitly denied that conspiracy. Finally,

he argues that the purported factual basis lacks the requisite

quantity    of   cocaine,    contending     that    if   the   quantity   were

established merely by his guilty plea to the conspiracy, as the

district   court    held,   the   factual   basis    requirement    would   be

meaningless.

      The Government responds that the court based its finding on

more than Kessee’s brief statements to the court. According to the

Government, the court also considered Agent Scott’s testimony and

the PSR, establishing a wide-ranging conspiracy between Kessee and

Denise Walpool, “BoBo,” Kenneth Gipson, Rodney Lewis, Anthony

Lewis, and “Squirrel,” whereby Kessee would buy large amounts of

cocaine (more than the requisite amount) in Mesquite, Texas and

sell them in Shreveport, Louisiana.         Hence, the Government argues,

the questions and comments by the court, including its question

whether Kessee had ever sold cocaine to anyone knowing that person



      7
        As this court has held, “if the evidence showed that a defendant is
merely a buyer or seller, the elements necessary to prove a conspiracy would be
lacking....” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993).

                                      6
would re-sell it, were mere attempts to explain conspiracy to the

defendant, not the factual basis itself.8

      Contrary to the Government’s suggestion, the factual basis

must consist of the defendant’s admitted conduct.               As we held in

United States v. Marek, district courts should compare “(1) the

conduct to which the defendant admits with (2) the elements of the

offense charged in the indictment.”9              Doing so vindicates the

purpose of Rule 11 — to protect defendants who may plead guilty

without realizing their admitted behavior does not constitute a

crime.

      Consistent with this view of Rule 11, the Government also

argues that Kessee implicitly admitted the requisite factual basis

by not disagreeing with Agent Scott’s statements at the plea

hearing or objecting to the PSR before sentencing, stating only

that the Government could not prove the conspiracy.                    Even if

silence in the face of allegations can be an admission supporting

a guilty plea,10 Kessee was far from silent here — from plea

negotiation to sentencing, he declined to admit conspiracy. Kessee

offered to plead guilty to possession, but the Government would

      8
        Moreover, it claims, the court’s explanation of conspiracy was correct
since evidence that both parties to a drug sale knew the drugs were meant for re-
sale is sufficient to establish a conspiracy.
      9
          238 F.3d 310, 315 (5th Cir. 2001).
      10
         See United States v. Gulledge, 491 F.2d 679, 679 (5th Cir. 1974)
(affirming conviction where the district court failed to find a factual basis at
the plea hearing, noting that the Government recited a sufficient factual basis
at sentencing, to which the defendant did not object). We do not decide the
issue.

                                        7
accept only a guilty plea to conspiracy.           Kessee’s lawyer and the

able judge, wishing to give Kessee what at the time appeared to be

a benefit of the plea bargain, overlooked Kessee’s insistence

during the     plea   hearing   that   the   Government      could    not   prove

conspiracy. At sentencing, probably realizing that the recommended

24- to 30-year sentence based on an unforeseen quantity of drugs

gave Kessee no real benefit over trial,11 Kessee’s counsel pressed

to withdraw his client’s plea, explaining that he had pressured

Kessee to accept the plea despite Kessee’s protestations.                   While

the transcript reveals that Kessee claimed only that the Government

could not prove conspiracy, not that he was innocent of conspiracy,

we are unwilling to read into that an admission of conspiracy.

      In sum, Kessee admitted only that at some time and in some

place he sold cocaine to someone he knew would re-sell it.                  As the

Government implicitly concedes, this admission does not support his

conviction for the conspiracy at issue.            And the Government does

not   argue   this    error   was   harmless.       Hence,    we     vacate   the

conviction.

      While we understand the impetus toward plea bargains, and that

this veteran district judge was plainly trying to protect the

defendant from what then appeared to be a foolish decision, there


      11
        The Government disagrees, arguing that Kessee did not move to withdraw
his plea until he saw the PSR at sentencing because only then did he see the
Government’s entire case, thinking it weak. Although we find this much less
likely, exactly why Kessee moved to withdraw his plea during sentencing is
irrelevant. The point is that Keesee consistently maintained that the Government
could not prove the conspiracy.

                                       8
are enough obstacles and disincentives on the path to trial that

defendants, like Kessee, expressly doubting the Government’s case

and requesting their traditional right to a jury should get their

wish.

     VACATED.




                                9
