

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1298

                          UNITED STATES,

                            Appellee,

                                v.

                            ROY GRAY,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. A. David Mazzone, Senior U.S. District Judge]                                                                   

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Cyr and Stahl, Circuit Judges.                                                         

                                           

     Jamie  Ann Sabino,  with whom  Klibaner and  Sabino, was  on                                                                  
brief for appellant.
     Roberta  T. Brown,  Assistant United  States  Attorney, with                                
whom  Donald  K. Stern,  United  States  Attorney  and Thomas  C.                                                                           
Frongillo, Assistant  United States  Attorney, were on  brief for                   
appellee.

                                           

                         August 16, 1995
                                           

          TORRUELLA, Chief Judge.   Appellant Roy Gray challenges                    TORRUELLA, Chief Judge                                          

the district court's denial of his motion to withdraw his plea of

guilty  to  charges  of  conspiracy  to  distribute  cocaine  and

distribution of cocaine.   Because we  find that Gray  reasonably

misunderstood the consequences of his  guilty plea, we remand  to

the district court for further proceedings.

                            BACKGROUND                                      BACKGROUND

          On January 20,  1993, a federal grand jury  returned an

indictment  charging  Gray  with   one  count  of  conspiracy  to

distribute cocaine base, in violation of 21 U.S.C.   846, and one

count  of distribution  of cocaine  and aiding  and abetting,  in

violation  of  21  U.S.C.      841(a)(1)  and  18  U.S.C.      2,

respectively.   Gray was arrested on April  8, 1993, and pled not

guilty  at his arraignment.   On October 18,  1993, the scheduled

trial date, Gray changed his plea to guilty as to both charges.

          At his change of  plea hearing, the court asked  Gray a

series of questions pursuant to Fed. R. Crim. P. 11.  In response

to  these questions,  Gray  stated that  he  had attended  school

through  the  "eighth  or  ninth  grade;"  he  denied  taking any

medicine, drugs, or alcohol on the day of the hearing, and stated

that he had not been treated recently for any mental condition or

mental  illness.   Gray  also  stated  that  he  had  no  trouble

understanding the court's questions.

          The  court  advised  Gray  of his  rights  in  specific

detail, and informed him that he would waive these rights when he

pled guilty.  Gray  stated that he understood his  rights as they

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had been explained, that he understood that by pleading guilty he

would lose those rights,  and that he gave up those rights freely

and voluntarily.

          The government  then  summarized the  evidence that  it

would have  offered if  Gray's case  had gone  to trial,  and the

court explained the nature of the charges.

          The court asked Gray if he was entering his guilty plea

freely and voluntarily, to which Gray answered yes.  With respect

to Gray's possible sentence, the following colloquy took place:

            COURT:  Do you believe it is in your best
            interest  to enter  a plea  of  guilty at
            this time? 

            GRAY:  Yes, your Honor.  The reason why I
            am pleading  guilty is like:   Take it to
            trial and let the  jury and the tape with
            me on the tape  talking, I don't stand no
            chance.    I'd  rather  plead  out,  your
            Honor.

            COURT:  So you believe then, in the light
            of   the  evidence   on  the   tapes  and
            otherwise,  that  it   is  in  your  best
            interest to plead guilty even if you have
            some  feelings about what you were really
            doing at the time, what was  really going
            on at the time; is that right, sir?

            GRAY:  Yes, sir.  And I rather plea.

            COURT:   Well, with that understanding in
            mind, do you still enter your plea freely
            and voluntarily?

            GRAY:  Yes, your Honor.

            COURT:     Do  you  understand  what  the
            maximum punishment can be?

            GRAY:  Not exactly, your Honor.

            COURT:   The  maximum punishment  is  ten
            years to life.

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            GRAY:  Yes, your Honor.

            COURT:   And a fine  of up to  $4 million
            dollars -- $8 million?

            GRAY:  Yes, your Honor.

            COURT:   And a special assessment  of $50
            on each count, do you understand?

            GRAY:  Yes, your Honor.

            COURT:  Do you  understand the matter  of
            your sentence is up to me?

            GRAY:  Yes, your Honor.

            COURT:    That  I  am not  bound  by  the
            agreement  that you have reached with the
            government?

            GRAY:  Yes, your Honor.

            COURT:   And,  also, do  you  understand,
            sir,  that  you   might  be  subject   to
            deportation?

            GRAY:  Yes, your Honor.

          The court subsequently found that:   1) Gray's plea was

made freely and voluntarily; 2) Gray understood the nature of the

charges  against him and the nature and consequences of his plea;

3)  Gray was competent to enter his  plea; 4) Gray understood his

rights,  and had freely and  voluntarily waived them;  and 5) the

factual basis for the guilty plea was adequate, and that Gray had

indicated  that it was  in his best  interest to enter  a plea of

guilty.

          Thirty-six days later, on November 23, 1993, Gray moved

to withdraw  his plea, alleging that:   1) he did  not understand

the plea  agreement which he  signed; 2) he  took no part  in the

sale of  drugs as part of  the alleged conspiracy; and  3) he did

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not understand that the consequences of his plea, specifically as

to his  sentence.  On February 3, 1994, the district court held a

hearing  on  Gray's  motion.    At  the  hearing,  the  arguments

proffered  by Gray's  counsel focused  almost exclusively  on the

second  of these claims and Gray's assertions of innocence at his

change of plea  hearing.   Essentially, Gray argued  that he  had

only pled  guilty because  his co-defendants and  defense counsel

had  suggested that  it  was  the best  course  of  action.   The

district court denied Gray's motion  to withdraw his guilty plea.

In so  doing, the court pointed  out that it had  found that Gray

had understood what he  was doing and had pled guilty  because he

felt it to be in his best interests to do so.  The district court

explained to Gray that "there is no question in my  mind that you

were  hesitant  in pleading;  but I  have  to conclude  that your

hesitation was  brought about  not so  much  from your  protested

innocence as much as it is from the penalty that you faced."1

                             ANALYSIS                                       ANALYSIS

          A.   Applicable Legal Principles                    A.   Applicable Legal Principles                                                    

          While a  defendant has no absolute right  to withdraw a

guilty plea,  United States  v. Ribas-Dominicci,  50 F.3d  76, 78                                                         

(1st Cir. 1995), a district court may allow such a request upon a

showing of "a fair and just reason."  Fed. R. Crim. P. 32(d); see                                                                           

also Ribas-Dominicci,  50  F.3d at  78; United  States v.  Cotal-                                                                           

Crespo,  47  F.3d  1, 3  (1st  Cir.  1995).    We  have  recently                

                                                  

1  The Presentence Report  for Gray had not yet been  prepared by
the date of the hearing on Gray's motion to withdraw his plea.

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reiterated  that  the factors  to  be  considered in  determining

whether  there  is  such   a  reason  are:    1)  the  force  and

plausibility of  the  proffered  reason;  2) the  timing  of  the

request;  3)  whether  the   defendant  has  asserted  his  legal

innocence;  and  4)  whether  the  parties  had  reached  a  plea

agreement.   Cotal-Crespo,  47 F.3d  at 3-4.   These  factors are                                   

relevant to the ultimate  issue to be addressed,  namely, whether

the  plea  was "knowing,  voluntary  and  intelligent within  the

meaning of [Fed. R. Crim. P.] 11."  Id. at 3.                                                

          We  have explained  that by entering  a guilty  plea, a

defendant effectively waives several constitutional rights.   For

that waiver to be valid, the  plea must amount to a voluntary and

intentional  relinquishment or  abandonment of  a known  right or

privilege.  Id. at 4 (citing McCarthy v.  United States, 394 U.S.                                                                 

459,  466  (1969)).   Rule  11  was  intended  to ensure  that  a

defendant  who pleads guilty does so with an understanding of the

nature of the charge and the consequences of the plea.  Id. at 4.                                                                    

We have  identified the  three "core  concerns" of Rule  11:   1)

absence  of coercion;  2)  the defendant's  understanding of  the

charges; and 3) the defendant's  knowledge of the consequences of

the guilty plea.  Id.   While technical violations of Rule 11 may                              

often be deemed harmless, a total failure  to address one of Rule

11's  "core concerns" mandates that the guilty plea be set aside.

Id.  In the absence of such a "total failure," the question to be            

determined  is  whether  deficiencies  in  the  Rule  11  hearing

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affected the defendant's "substantial rights."  Fed. R. Crim.  P.

11(h); see also Cotal-Crespo, 47 F.3d at 5.                                      

          In determining  whether there  has been a  violation of

one of  the core concerns of  Rule 11, we review  the totality of

the  circumstances surrounding the  Rule 11 hearing  at which the

defendant pled  guilty.  Cotal-Crespo,  47 F.3d  at 4.   We  have                                               

explained that "[w]hat is  critical is the substance of  what was

communicated  by the trial court, and what should reasonably have

been understood by  the defendant,  rather than the  form of  the

communication."  Id. at 4-5.                             

          We will reverse a district court's decision disallowing

the  withdrawal  of a  guilty  plea  only  upon a  showing  of  a

"demonstrable  abuse of  discretion."   Id. at  5.   The district                                                    

court's subsidiary findings of fact in connection  with the plea-

withdrawal motion are reviewed  only for clear error.   Id.  With                                                                    

these principles in mind, we turn to Gray's claims.

          B.   Was  Gray's guilty  plea "voluntary                    B.   Was  Gray's guilty  plea "voluntary                                                            
               and intelligent"?                         and intelligent"?                                         

          Gray claims that because of certain deficiencies in his

Rule  11 hearing, his guilty  plea was not  given voluntarily and

intelligently.   Although Gray offers several  grounds to support

his claim, we find that  only one of them merits discussion.   In

his  motion to withdraw his plea, Gray stated essentially that he

did not understand that he was pleading to a crime with a minimum

ten-year sentence.   He claims now that  this misunderstanding of

the  consequences of  his  plea "tainted  his  decision to  plead

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guilty," and constitutes  a violation  of one of  Rule 11's  core

concerns.  Although it is a close question, we agree.

          When  asked by the court at his Rule 11 hearing whether

he  understood  "what  the  maximum punishment"  could  be,  Gray

responded,  "Not  exactly,"  thus   alerting  the  court  to  his

uncertainty about the consequences  of his plea.  In  its attempt

to  explain  these  consequences, however,  the  court mistakenly

stated,  "The maximum punishment is ten years to life." (Emphasis                               

added).   This statement  was incorrect;  in fact,  the mandatory                                                                           

minimum sentence for  the crime to which Gray pled guilty was ten                 

years,  and  the  court  had  no  discretion  over  this  minimum

sentence.   Moreover, this incorrect  explanation was exacerbated

by the court's subsequent  statement to Gray that "the  matter of

your sentence  is  up to  me," implying  that the  length of  the

sentence was  discretionary rather than mandatory.  We think that

based  on these  statements,  a defendant  could have  reasonably

concluded that  ten  years  was  the  maximum  sentence,  at  the                                                       

discretion  of  the court,  and that  by  pleading guilty  it was

possible that he could receive a sentence of less than ten years.

          The  government  concedes  that  the  district  court's

incorrect  explanation of Gray's sentence was  "short of ideal." 

The government nevertheless argues that, when considered in light

of the fact that Gray had that morning signed the plea agreement,

which specifically sets  forth the  applicable minimum  mandatory

sentence  of  ten years,  the  court's mistake  should  be deemed

harmless.  This argument  ignores the plain language of  Rule 11,

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stating that "the court must address the defendant personally  in

open  court and inform the  defendant of, and  determine that the                                                                           

defendant understands," the matters enumerated in Rule 11.   Fed.                               

R.  Crim. P. 11(c) (emphasis added).  We have held that "reliance

on a written document is not a sufficient substitute for personal

examination  by the  court" in  ascertaining that Rule  11's core

concerns  are addressed.   United  States v.  Medina-Silverio, 30                                                                       

F.3d 1, 3  (1st Cir. 1994) (internal quotations omitted).    When

asked at the hearing, Gray clearly stated under oath that  he did

not  fully understand  his potential  sentence, despite  the fact                                                                 

that  he  had signed  the plea  agreement  that morning.   Gray's

signature  on  the  plea  agreement  is  therefore   insufficient

indication of his actual understanding of the consequences of his

plea,  and  thus  cannot  cure or  obviate  the  court's mistaken

explanation of the applicable sentence.

          We think that the substance of what was communicated to

Gray, specifically the district court's  incorrect and misleading

explanation of the  mandatory minimum sentence, could  have led a

reasonable person to misunderstand the consequences of his guilty

plea  in this  context, thus  implicating one  of Rule  11's core

concerns.

          Although  the court's error is  not a "total failure to

address"  one of Rule  11's core  concerns, see  Cotal-Crespo, 47                                                                       

F.3d  at  5,  we  cannot  say  with  any  certainty  that  Gray's

reasonable misunderstanding  of his  sentence did not  affect his

substantial rights within the  meaning of Rule 11.   In fact, the

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record  indicates, and  the government  even suggests,  that Gray

decided  to withdraw his guilty plea only after learning the true

consequences  of  his  decision  through   discussions  with  his

counsel.   It seems likely, at  the very least, that  if Gray had

clearly and  accurately understood  the consequences of  a guilty

plea,  he would  have  decided differently.    The court's  error

leading  to Gray's  misunderstanding  therefore  affected  Gray's

substantial rights, and Gray's guilty plea cannot be said to have

been given voluntarily and  intelligently.2  Accordingly, we hold

that  the  district  court  erred  in  denying  Gray's  motion to

withdraw his guilty plea.3

          The  judgment of  conviction  and sentence  is vacated.                                                                          

The guilty plea is set aside and the case is remanded for further                                                                           

proceedings consistent with this opinion.                                                  

                                                  

2   We recently rejected a somewhat similar challenge as harmless
error.  In  United States v. L pez-Pineda, 55  F.3d 693 (1st Cir.                                                   
1995), the appellant contended that the Rule 11 plea colloquy had
been  deficient due  to  the failure  of  the district  court  to
identify the applicable minimum mandatory sentence.  Id. at  696.                                                                 
The   four-part  test   for   assessing  such   Rule  11   claims
(plausibility of  grounds for  requesting plea change,  timing of
request,  assertion  of  innocence,  and   legal  sufficiency  of
original Rule  11 hearing), requires  a different result  in this
case.   First,  Gray advances  a  plausible basis  for requesting
vacation of his  guilty plea  and for failing  to understand  the
sentencing consequences  of his  guilty plea,  see supra  at 8-9,                                                                  
whereas  L pez-Pineda tendered a  highly implausible explanation.
Second, L pez-Pineda complained only  after his sentence had been
imposed.   Id. at 697.  Third, unlike Gray, L pez-Pineda asserted                       
no claim of innocence.  Id.                                    

3   Because we find  that Gray misunderstood  the consequences of
his guilty  plea and reverse on this basis, we do not address his
other arguments on appeal.

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