                                                                      [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                  FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 MAR 19 2001
                                 No. 99-13321                 THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D. C. Docket No. 98-08107-CR-WDF

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

WILBYE TELEMAQUE,
a.k.a. Wilby, a.k.a. Jacque,

                                                         Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (March 19, 2001)


Before BIRCH, BARKETT and COX, Circuit Judges.

PER CURIAM:
       Wilbye Telemaque appeals his convictions, entered on a plea of guilty, of

possession of crack cocaine with intent to distribute and conspiracy to do the same.1

He argues first that the district court meddled in plea negotiations in violation of Fed.

R. Crim. P. 11(e)(1), and second that the district court failed adequately to inform him

of the nature of the charges against him, as Rule 11(c) requires. Reviewing for plain

error (Telemaque did not object below), United States v. Quiñones, 97 F.3d 473, 475

(11th Cir. 1996), we vacate and remand.

       We reject the argument that the district court improperly intermeddled in the

plea negotiations. Telemaque’s counsel informed the court at the outset of the plea

hearing that Telemaque had entered a plea agreement, but needed special explanation

that the plea agreement (which committed the Government only not to oppose a two-

level acceptance-of-responsibility reduction in Telemaque’s offense level) did not

determine Telemaque’s sentence. The reason, counsel explained, was that Telemaque

was unhappy with his counsel because there was no mention of a three-point reduction

for early acceptance of responsibility.        The court first asked why Telemaque was

“not happy.” (Supp. R.1 at 4.) After the question was better explained, Telemaque

told the

       1
               The Government’s recited facts were that Telemaque sold a freshly cooked two-
ounce crack cookie to an undercover agent and then, after his arrest, permitted a search of his
apartment, in which agents found cocaine cooking equipment, $10,000 in cash, crack, and
cocaine hydrochloride.

                                               2
       court that he thought his first lawyer was to blame for his not pleading guilty

sooner. The court then pointed out to Telemaque that the offense-level reduction was

up to the court and as yet undecided. The court then asked Telemaque if he still

wished to proceed; Telemaque said yes.

      The court’s statement did not violate Rule 11(e), for two reasons. First, the

written plea agreement was already executed. No case that Telemaque cites, or that

we have located, holds that a court’s postagreement remark can violate the Rule. See

United States v. Johnson, 89 F.3d 778, 782 (11th Cir. 1996) (noting that Rule 11’s

“literal” terms do not apply outside of plea discussions). Second, even if the Rule’s

penumbrae, as interpreted in Johnson, do prohibit potentially coercive postagreement

statements, this one was not; the court’s statement here did not differ in substance

from one the court could properly make in ascertaining that the plea is not based on

the misconception that a Government promise not to contest a particular sentencing

outcome guarantees that outcome. Cf. United States v. Camacho, 233 F.3d 1308,

1320-21 (11th Cir. 2000). We therefore reject Telemaque’s first argument.

      But we do think that the district court plainly erred in failing to inform

Telemaque of the nature of the offense. Any failure to address one of Rule 11(c)’s

three “core concerns,” of which informing the defendant of the nature of the offense

is one, is prejudicial plain error. United States v. Hernandez-Fraire, 208 F.3d 945,


                                          3
949 (11th Cir. 2000). Whether the court has adequately informed the defendant of the

offense’s nature turns on a variety of factors, including the complexity of the offense

and the defendant’s intelligence and education. See, e.g., United States v. Wiggins,

131 F.3d 1440, 1443 (11th Cir. 1997); United States v. DePace, 120 F.3d 233, 236

(11th Cir. 1997); Quiñones, 97 F.3d 473, 475 (11th Cir. 1996).

      The record here does not persuade us that Telemaque was adequately informed,

or that the district court had an adequate basis on which to find that the plea was

knowing. The district court referred to the nature of the offense only once in the entire

colloquy, asking Telemaque:

      Have you seen the indictment or have you had the indictment read to you
      so that you understand exactly how you are charged in counts one and
      three, and what the Government what [sic] would have to prove in order
      that you be convicted?

(Supp. R.1 at 10-11.) Telemaque replied, “Yes.” (Id.) The court did not refer to the

elements of the offense in inviting the Government’s proffer, cf. Wiggins, 131 F.3d

at 1443, nor was there any statement on the record that Telemaque’s counsel assisted

Telemaque in understanding the charges, cf. United States v. Byrd, 804 F.2d 1204,

1206 (11th Cir. 1986). This case is materially similar rather to Quiñones, in which we

held insufficient a colloquy in which the court asked the defendant only whether he

had read the indictment (charging use of a firearm during a drug offense) and

reviewed it with his attorney. Quiñones, 97 F.3d at 474.

                                           4
      Possession with intent to distribute crack and conspiracy to do the same are not

of course the most complicated of offenses, perhaps not even as complicated as the

offense in Quiñones of using or carrying a firearm during a drug-trafficking offense.

But the circumstances do not suggest that Telemaque would understand even this

simple offense without at least some explanation, or that the district court could assure

itself with a simple yes-no question that Telemaque actually understood. The court

did not inquire into Telemaque’s education or background at the change-of-plea

hearing, but the presentence report shows that Telemaque immigrated to the U.S. from

Haïti at the age of sixteen and finished high school, but at the bottom of his class. The

record does not reflect that Telemaque had any prior involvement in the court system,

either, that would make his quick comprehension more probable.

      In these circumstances, we conclude that the district court plainly erred in

failing to describe to Telemaque at all the nature of the charges against him. We

vacate Telemaque’s conviction and remand for further proceedings.

      VACATED AND REMANDED.




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