                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                                 No. 92-4232


                         UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,


                                     VERSUS


                               WAYNE A. PIERCE,

                                                       Defendant-Appellant.




              Appeal from the United States District Court
                  for the Western District of Louisiana
                          (    October 14, 1993    )


Before WISDOM, JOLLY and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

      A member of the court having requested that the mandate for

the original panel opinion, dated December 29, 1992, be withheld,

the   court   now   on   its   own   motion   withdraws    such   opinion   and

substitutes this opinion in lieu thereof.

      In this case we decide whether the district court's failure to

inform the defendant when he entered his guilty plea that the

maximum sentence he could receive would include an additional

mandatory sentence under 18 U.S.C. § 3147 violated Rule 11 of the

Federal Rules of Criminal Procedure.          We hold that under our recent

en banc decision in United States v. Johnson, No. 92-8057 (5th Cir.

Aug. 26, 1993), the court's less than perfect compliance with the
rule is excused under the harmless error standard of Rule 11(h).

We therefore affirm Pierce's conviction and sentence.

                             I.   BACKGROUND

     Appellant, Wayne A. Pierce, is a former Grand Dragon of the Ku

Klux Klan in Louisiana.        On November 19, 1990, the government

charged Pierce in a one-count indictment with felony possession of

a firearm in violation of 18 U.S.C. § 922(g).        The same day, Pierce

was arraigned and released on bond.       Before being released, Pierce

signed a written notice advising him that he would be subject to an

enhanced penalty if he committed another offense while on release.

A jury found Pierce guilty on February 4, 1991, but he remained on

bond status until May 7 when the court ordered him to begin serving

his sentence.

     While on release, Pierce and other members of the Klan planned

to burn several crosses on the day Pierce began serving his firearm

possession sentence.      The evening after Pierce entered prison, his

co-defendants    burned    crosses   at   nine   different   locations   in

Louisiana.      As a result of the cross-burning, the government

indicted Pierce and his co-defendants on the following charges:

     Count 1:    Conspiracy to interfere with federal rights in
                 violation of 18 U.S.C. § 241;

     Count 2:    Use of fire in the commission of a felony in
                 violation of 18 U.S.C. §844(h);

     Count 3:    Interference by force or threat of force with fair
                 housing rights in violation of 42 U.S.C. § 3631(a);




                                     2
      Counts 4 and 5: Interference by force or threat of force with
                public schooling in violation of 18 U.S.C. §
                245(b)(2)(A); and

      Count 6:      Conspiracy to make a false declaration in violation
                    of 18 U.S.C. § 1623.

      On December 4, 1991, Pierce entered into a plea agreement in

which he agreed to plead guilty to Counts One, Three, Four, Five

and Six.    The district court held a Rule 11 hearing and informed

the defendant that the maximum total period of incarceration the

court could impose was 18 years.           Sentencing was set for February

21, 1992.

      On January 31, 1992, the government filed an Application for

Sentence Enhancement for committing offenses while on release

status under U.S.S.G § 2J1.7 and 18 U.S.C. § 3147.               The effect of

these enhancement provisions was to increase the maximum total

period of incarceration the court could impose from 18 years to 28

years. See 18 U.S.C. § 3147(1).       Pierce was not made aware of this

enhancement either in the plea agreement or at the plea hearing.

      On February 21, 1992, the district court sentenced Pierce to

60 months of incarceration on counts one and six of the indictment

and   12   months    on   counts   three    four   and   five,    all   to   run

concurrently. Pursuant to 18 U.S.C. § 3147(1), the court sentenced

the defendant to an additional 12 months for committing an offense

while on release status, giving the defendant a total effective

sentence of 72 months.

      Pierce appeals, claiming that his guilty plea was involuntary

because the district court understated the maximum sentence he

could receive in violation of Rule 11 of the Federal Rules of

                                      3
Criminal Procedure.       He argues that, as a result, he should be

allowed to plead anew.

                              II.   DISCUSSION

     The relevant portions of Rule 11 reads as follows:

     (c)   Advice to Defendant.   Before accepting the a plea of
     guilty or nolo contendere, the court must address the
     defendant 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 under some
           circumstances, and when applicable, that the court may
           also order the defendant to make restitution to any
           victim of the offense; . . .

           . . .

     (h)   Harmless Error.     Any variance from the procedures
     required by this rule which does not affect substantial rights
     shall be disregarded.

     Prior to our en banc decision in Johnson, this court employed

a two step analysis in determining whether a district court's

failure   to   admonish   a   defendant    in   accordance   with   Rule   11

warranted an automatic reversal.          We first determined whether the

failure affected a "core concern" under Rule 11, and if so, we

classified the district court's failure as either total or partial.

Thus, if the district court totally failed to address a core

concern under Rule 11, the error warranted automatic reversal.

     Our en banc decision in Johnson has "chucked" that two step

inquiry and now applies a harmless error analysis across the board.

Johnson, slip op. at 6422.           The inquiry now is: (1) did the

sentencing court vary from the procedures required by Rule 11, and

                                      4
(2) if so, did such variance affect substantial rights of the

defendant? Id. at 6418.           To determine whether the error affected

substantial rights, we focus on whether the defendant's knowledge

and comprehension of the full and correct information would have

been likely to affect the defendant's willingness to plead guilty.

Id. at 6423.

     Applying this inquiry to the facts here, we conclude that the

court varied from the procedures required by Rule 11 when it failed

to advise Pierce of the maximum penalty to which he was subject

after       application   of   the   enhancement       provisions.        After   the

government      requested      enhancement,      the   court   should     have    held

another hearing and informed Pierce of the requested enhancement

and its effect.         Failing to do so was error.1

     Having found the error, the next question is whether it was

harmless.       To make this determination, we "'examine the facts and

circumstances of the . . . case to see if the district court's

flawed compliance with . . . Rule 11 . . . may reasonably be viewed

as having been a material factor affecting [Pierce]'s decision to

plead       guilty.'"   Id.    (quoting   Fed.    R.   Crim.   P.    11   (advisory

committee notes to 1983 amendment)).              We conclude that the court's

failure to inform Pierce of the enhancement cannot be so viewed.




        1
      We note that the district court would not have found itself
in this position were it not for the conduct of the prosecution in
waiting to request an enhancement until after the court had held
Pierce's Rule 11 hearing.

                                          5
     These facts present a prototypical case of harmless error.2

Here, the sentencing court informed Pierce during the Rule 11

colloquy that his maximum possible prison time was 18 years. Based

on this understanding of a "worst case scenario," Pierce made the

decision to plead guilty.     And rather than having this scenario

realized, Pierce was actually sentenced to six years, a sentence

well below the 18 year period of which the court had made him

aware.    Clearly Pierce has not been harmed.

     Moreover, the fact that his true "worst case scenario" was

actually worse than he was informed would not have reasonably

caused Pierce to doubt the wisdom of his plea.    To the contrary,

logic and reason would weigh this factor in favor of his decision

to plead guilty: if Pierce was willing to plead guilty when facing

what he believed was an 18 year maximum, would he not have been

just as willing if had he known that the maximum was 28 years?

                          III.   CONCLUSION

     Thus, we hold that "the nature and extent of the deviation

from Rule 11 was such that it could not have had any impact on the

      2
       It is noteworthy that the advisory committee notes to the
1983 amendment to Rule 11 adopting section (h) cite United States
v. Peters, No. 77-1700 (4th Cir., Dec. 22, 1978), as being
"illustrative" of cases to which harmless error applies.         In
Peters, the defendant was advised that he might receive a sentence
of fifteen years plus a special parole term of at least three
years; the defendant was not advised of the maximum number of years
of the mandatory special parole term. At sentencing, the defendant
received a sentence of fifteen years plus a special parole term of
three years. The defendant appealed, arguing that the court had
violated Rule 11 by failing to advise him of the maximum number of
years that might be imposed as a special parole term. The Fourth
Circuit affirmed the sentence, concluding that any error was
harmless because his actual sentence did not exceed that indicated
in the district court's warnings.

                                  6
defendant's decision to plead or the fairness in now holding him to

his plea." Fed. R. Crim. P. 11 (advisory committee notes to 1983

amendment).          Having so held, Pierce's conviction and sentence are

AFFIRMED.




E. GRADY JOLLY, Circuit Judge dissenting:



        I respectfully dissent because the majority's overgeneralized

analysis fails completely to focus on what Supreme Court precedent

clearly dictates is the central issue involved in this case: the

voluntary nature of Pierce's guilty plea.            See Brady v. United

States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747

(1970).        The majority opinion holds the district court's Rule 11

error to be "harmless" because: (1) Pierce ultimately received less

than the 18-year maximum sentence that the district court informed

him of at the Rule 11 hearing; and (2) the 20-year increase in

Pierce's potential maximum sentence caused by the post-hoc 18

U.S.C. § 3147 enhancement would not constitute a material factor

affecting his decision to plead guilty.         With all due respect, the

majority's analysis could not be more flawed when it effectively

says that a defendant can enter, as a matter of law, a voluntary,

knowing, and intelligent plea of guilty when the actual peril faced

by the defendant was more than twice as great as he was told by the

district court at the time he entered his plea.         The effect of the

c:br:opin:92-4232p.3cf                  7
majority's holding is that when a defendant is sentenced to a term

less than the maximum sentence of which he is advised, the failure

to inform the defendant of the actual maximum sentence he faces is

always harmless error.   I do not believe that is the law, nor do I

believe that is what Johnson holds.3   Accordingly, I would remand

so that Pierce could receive another Rule 11 hearing in which the


     3
      United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993),
provides that our harmless error analysis must focus on:

     [W]hether [the defendant's] knowledge and comprehension
     of the full and correct information would have been
     likely to affect the defendant's willingness to plead
     guilty.

This language correctly requires focus on the voluntary nature of
the defendant's decision at the time he enters his plea, i.e., on
the information the defendant possessed when he pled guilty.
Curiously, Johnson, at 298, further provides, that in determining
the voluntariness of a plea we may consider the "sentence actually
imposed" on the defendant although the sentence is always imposed
sometime after the entry of the plea. Only in the rare instance in
which the defendant knows of the actual sentence to be imposed
prior to making his plea will the actual sentence inform the court
about the defendant's knowledge when he entered the plea. Johnson
then states that we should consider the ultimate sentence to
determine the validity of the plea when it is:

     [T]emporally relevant to the voluntary and uncoerced
     nature of the defendant's guilty plea, and to his
     knowledge and understanding of the nature of the charges
     against him and the consequences of his plea.

Id. (emphasis added).

With all due respect, I find this observation, especially the words
"temporally relevant" somewhat confusing, unless the words refer
only to the time period before the defendant enters his plea. The
actual sentence imposed, perhaps, could be relevant, but not
temporally so, to the reasonableness of a projected guidelines
range that the district court informed the defendant of at the Rule
11 hearing.    Here, however, the district court did not inform
Pierce of any projected guidelines range and thus, the actual
sentence imposed cannot be relevant in any sense to the
voluntariness of Pierce's plea entered some months prior to the
district court's imposition of the actual sentence.
district court would inform him of the actual statutory maximum

sentence of 38 years.         This would enable pierce to enter a

voluntary   plea   within   the   plain   meaning   of   Rule   11   and   the

unambiguous mandate of Supreme Court precedent.




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