UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                           No. 99-4075

PAUL C. JONES, a/k/a Black,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-66)

Argued: March 3, 2000

Decided: April 13, 2000

Before WILKINS, NIEMEYER, and MICHAEL,
Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN
& SAYERS, P.C., Roanoke, Virginia, for Appellant. Ray B. Fitzger-
ald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Paul C. Jones was convicted upon a plea of guilty of engaging in
a continuing criminal enterprise. See 21 U.S.C.A. § 848 (West 1999).
Jones appeals his conviction, arguing that the district court committed
reversible error at the plea hearing because the court informed Jones
that the mandatory minimum sentence for the plea offense was twenty
years imprisonment when in fact it was life imprisonment. We agree
with Jones and therefore vacate his conviction and remand for further
proceedings.

I.

Jones and several other individuals were charged in Count One of
a superseding indictment with conspiracy to possess with the intent
to distribute and to distribute cocaine base, see 21 U.S.C.A. § 846
(West 1999). Count Two of the indictment charged that the drug oper-
ation constituted a continuing criminal enterprise and that Jones was
its "principal leader, organizer, and manager." J.A. 20; see 21
U.S.C.A. § 848(a), (b)(1). Count Two also alleged that "the violations
committed by [Jones] or under his direction involved more than one
and one-half kilograms of cocaine base." J.A. 20.

On the day Jones' trial was scheduled to begin, he agreed to plead
guilty to Count Two. The written plea agreement stated that "[t]he
parties agree and will present evidence ... to establish that JONES's
`relevant conduct' within the special meaning of that term under the
Sentencing Guidelines exceeded 1.5 kilograms of cocaine base." J.A.
57. This stipulation, in combination with Jones' agreement that he
was an "organizer, supervisor, or manager" of the enterprise, J.A. 56,
subjected Jones to a statutory minimum sentence of life imprison-
ment. See 21 U.S.C.A. § 848(b). However, the plea agreement errone-
ously stated that the statutory minimum penalty was 20 years

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imprisonment and that life imprisonment was the statutory maximum
sentence.1

The error regarding the applicable sentencing range extended to the
plea hearing, during which the court explicitly advised Jones that "the
mandatory minimum penalty under Count 2 is imprisonment for a
term of not less than 20 years" and that "[t]he maximum possible pen-
alty under Count 2 is imprisonment for a term of life."2 J.A. 38. At
the conclusion of the plea hearing, Jones pled guilty to Count Two
and the district court accepted the plea as knowing and voluntary.

The subsequently prepared presentence report correctly stated that
the statute underlying the offense of conviction mandated a life term
of imprisonment. Shortly thereafter, Jones moved to withdraw his
plea, arguing that the plea was not knowing and voluntary because he
had been misinformed regarding the applicable statutory minimum
sentence. The district court denied the motion because it concluded
that Jones had not demonstrated a fair and just reason for withdrawal
under the six-factor test employed by this court. See United States v.
Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996). In particular, the district
court stated that Jones had offered "no credible evidence that his plea
was not entered into knowingly and voluntarily." J.A. 69.

At Jones' initial sentencing hearing, the court allowed Jones' attor-
ney to further address the issue of the motion to withdraw. Counsel
argued that had Jones known his guilty plea would result in a manda-
tory life sentence, he would not have entered the plea. Jones also testi-
fied at the hearing and reiterated that he would not have pled guilty
had he known that the consequence of the plea would be a mandatory
life sentence. The district court then granted the motion to withdraw,
but later vacated its order in response to the Government's motion to
reconsider. The district court also denied a second motion to with-
draw and, following another sentencing hearing, sentenced Jones to
life imprisonment.
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1 Both the prosecuting attorney and the defense attorney mistakenly
believed that this sentencing range was correct and neither learned of the
error until after the Rule 11 hearing.
2 The district court also stated that Jones' case "[didn't] look like a
maximum case." J.A. 38.

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II.

A defendant's decision to plead guilty must be a knowing and vol-
untary one. See Parke v. Raley, 506 U.S. 20, 28 (1992). Rule 11(c)
is intended to ensure that a guilty plea is "knowing" by requiring the
district court to impart, and be sure that the defendant understands,
certain information. See Fed. R. Crim. P. 11(c); id. advisory commit-
tee's note to 1974 Amendment. Particularly, Rule 11(c) requires the
district court to advise the defendant of any applicable mandatory
minimum sentence. See Fed. R. Crim. P. 11(c)(1); United States v.
Goins, 51 F.3d 400, 402 (4th Cir. 1995). We review the adequacy of
a Rule 11 proceeding de novo. See United States v. Thorne, 153 F.3d
130, 132 (4th Cir. 1998).

Here, Jones was not accurately informed of the mandatory mini-
mum sentence that would result from his guilty plea. In fact, he was
misinformed. Therefore, a violation of Rule 11 occurred. This viola-
tion is harmless, however, if it did not violate Jones' substantial
rights. See Fed. R. Crim. P. 11(h); Thorne, 153 F.3d at 133. A defen-
dant's substantial rights are violated if the Rule 11 error affected his
decision to plead. See Thorne, 153 F.3d at 133. A defendant's sub-
stantial rights are likely not violated if, although the district court
failed to mention the mandatory minimum sentence at the plea hear-
ing, the defendant was otherwise aware of the mandatory minimum
sentence. See, e.g., United States v. Young, 927 F.2d 1060, 1062 (8th
Cir. 1991) (holding that failure of district court to inform defendant
of mandatory minimum sentence was harmless error when defendant
was aware of the minimum from the indictment, the plea agreement,
and the prosecutor's statements during the plea hearing); see also
Goins, 51 F.3d at 402-03 (noting rule and discussing cases).

We conclude that the error here was not harmless. There is no sug-
gestion that Jones was otherwise aware of the minimum sentence for
his offense when he entered the plea. See United States v. Hourihan,
936 F.2d 508, 510-11 (11th Cir. 1991) (per curiam) (holding that fail-
ure to inform defendant of mandatory minimum sentence was not
harmless error when neither the indictment nor the plea agreement
informed the defendant of the mandatory minimum and the parties
contemplated a sentence less than the mandatory minimum). Further,
the error certainly affected Jones' decision to plead; Jones articulated

                    4
the understandable position that he would not have pled guilty had he
realized that the plea offense carried a mandatory life sentence.

The Government argues that the plea should be upheld because
Jones was informed that the maximum sentence was life and that sen-
tencing was within the sole and complete discretion of the district
court. The Government even goes so far as to suggest that the court
was accurate in its statement that the statutory penalty ranged from
twenty years to life because at the time of the plea hearing "it was by
no means certain that the evidence would eventually convince the
court that Jones should be held responsible for more than 1.5 kilo-
grams of crack." Brief of Appellee at 7. We reject these arguments
because the parties stipulated in a written plea agreement that Jones
was responsible for 1.5 kilograms of cocaine base. Consequently,
Jones pled guilty to an offense that carried a statutory minimum sen-
tence of life imprisonment and should have been informed of this fact.

III.

Because Jones' plea hearing was infected by a non-harmless Rule
11 error, we vacate his conviction and remand for further proceedings
consistent with this opinion.3

VACATED AND REMANDED
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3 In light of this conclusion, we need not address Jones' arguments that
the district court abused its discretion in denying the motion to withdraw
the guilty plea and that he received ineffective assistance of counsel.

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