          United States Court of Appeals
                       For the First Circuit


No. 99-1491

                    UNITED STATES OF AMERICA,

                       Plaintiff, Appellee,

                                 v.

                      CÉSAR R. CASTRO-GÓMEZ,

                       Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Juan M. Pérez-Giménez, U.S. District Judge]



                               Before

                      Torruella, Chief Judge,

                 Stahl and Lipez, Circuit Judges.




      Lydia Lizarribar-Masini, was on brief, for appellant.
      Camille Vélez-Rivé, Assistant U.S. Attorney, with whom Guillermo
A. Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S.
Attorney, were on brief, for appellee.



                          December 7, 2000
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          TORRUELLA, Chief Judge. Appellant César R. Castro-Gómez

appeals the denial by the district court of his motion to withdraw his

guilty plea. Castro-Gómez allegedly was unaware that the only possible

sentence for a person with his criminal history under the "three

strikes" statute, 18 U.S.C. § 3559(c)(1)(A), was life imprisonment.

Because the district court did not inform appellant, as required by

Federal Rule of Criminal Procedure 11(c)(1), that he faced a minimum

mandatory life sentence, we reverse.

                             BACKGROUND

          On November 12, 1997, a grand jury returned an indictment

against César R. Castro-Gómez charging him with: (1) conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C.

§ 846 and 18 U.S.C. § 2; (2) attempt to import and possess with intent

to distribute cocaine on board a vessel, in violation of 46A U.S.C.

§ 1903(a) and (b)(1) and 18 U.S.C. § 2; and (3) aiding and abetting

unlawful importation of cocaine into the United States, in violation of

21 U.S.C. § 963 and 18 U.S.C. § 2. In the months leading up to trial,

appellant's counsel engaged in plea negotiations with the government

resulting in a motion for a change of plea from not guilty to guilty.

Shortly thereafter, the United States Attorney's office determined that

it would not offer appellant a deal and filed an Information stating

that based on appellant's prior criminal history, it would seek life

imprisonment.


                                 -3-
          On March 25, 1998, appellant's change of plea hearing was

held before the district court. Appellant entered a straight plea of

guilty for the three counts with which he was charged. The district

court explained to appellant that each count had a minimum sentence of

ten years imprisonment and a maximum of life imprisonment. Appellant

was told that the sentences could be imposed to run concurrently or

consecutively and was given examples of possible scenarios. Appellant

stated that no promises or predictions had been made to him regarding

what sentence he was likely to receive. No mention of the government's

Information was made at appellant's change of plea hearing.

          Appellant's sentencing hearing was held on August 17, 1998.

The government moved for the district court to take into account the

Information regarding appellant's prior convictions, which would

mandate a sentence of life imprisonment. Appellant's counsel responded

by objecting and stating that she did not know of the filing of the

Information until she received the pre-sentence report. In addition,

she stated that had she known that the government was going to file an

Information, appellant would not have pled guilty. Appellant's counsel

reasoned that if faced with mandatory life imprisonment, appellant had

nothing to lose by going to trial. The government countered that

appellant's counsel had been alerted to the filing of the Information,

as evidenced by the certificate of service. The sentencing hearing was

continued with instructions to the parties to clarify their positions.


                                 -4-
          The government filed two unsworn statements indicating that

appellant's counsel had been notified of the impending filing of the

Information. On November 3, 1998, appellant filed a motion to withdraw

his guilty plea on the grounds that he did not make an intelligent or

knowing plea. This was denied by the district court in its Opinion and

Order of February 4, 1999 for the reasons that: (1) appellant's counsel

probably had received notice of the Information, or, at minimum,

certainly knew about appellant's prior criminal convictions and should

have expected that the government would file such Information; and (2)

appellant was informed of the possibility of a life sentence and had no

expectation of any particular sentence.       Appellant's Motion for

Reconsideration was similarly denied on February 24, 1999, and

appellant was sentenced to life imprisonment, as required by statute,

on March 12, 1999.

                             DISCUSSION

          The standard of review for denial of a motion to withdraw a

guilty plea is abuse of discretion. United States v. Ribas-Dominicci,

50 F.3d 76, 78 (1st Cir. 1995). Appellant was not per se entitled to

withdraw his guilty plea prior to sentencing.        United States v.

Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997). Instead, motions to

withdraw a guilty plea prior to sentencing may be allowed upon a

showing of "any fair and just reason," Fed. R. Crim. P. 32(e), with the

burden of persuasion falling upon the defendant, Marrero-Rivera, 124


                                 -5-
F.3d at 347. In making this determination, the district court was

required to evaluate whether the guilty plea was voluntary,

intelligent, and knowing within the framework of Federal Rule of

Criminal Procedure 11.     Id.

          Rule 11(c) of the Federal Rules of Criminal Procedure governs

a court's conduct when a defendant pleads guilty or nolo contendere.

Specifically, the court must communicate to the defendant personally:

"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." Fed. R. Crim. P. 11(c)(1). This Court has

identified three "core" concerns of Rule 11(c). They are: (1) that the

plea is voluntary; (2) that the defendant understands the charge to

which he has pled guilty; and (3) that the defendant knows the

consequences of his guilty plea. Marrero-Rivera, 124 F.3d at 348 n.7.

The complete failure of the district court to address one or more of

these three concerns would warrant reversal. Id. at 348. Absent total

failure, any variance from the procedures required by Rule 11 that does

not "affect substantial rights" is harmless error. Fed. R. Crim. P.

11(h); Marrero-Rivera, 124 F.3d at 348.       We look at all of the

circumstances of the Rule 11 hearing to determine what appellant

reasonably should have understood.      Id.

          In this appeal, only the third concern, appellant's knowledge

of the consequences of his guilty plea, is relevant. At his change of


                                 -6-
plea hearing, Castro-Gómez was informed by the district court that,

based on the offenses to which he intended to plead guilty, he faced a

minimum of ten years imprisonment and a maximum of life imprisonment.

According to the Information filed by the government, however,

appellant's prior criminal history mandated a life sentence. The ten-

year minimums set out in the statutes that appellant was charged with

violating were not applicable. It follows that he was not accurately

apprised of the minimum mandatory sentence that would be imposed, as

required by Rule 11(c)(1).

          A failure to inform a defendant of a mandatory minimum

sentence at his plea hearing "implicates a core concern of Rule 11."

United States v. McDonald, 121 F.3d 7, 10-11 (1st Cir. 1997). Before

forfeiting the right to trial by a plea of guilty, appellant was

entitled to have the consequences of that forfeiture accurately

explained. Informing appellant of the mandatory minimums for the

offenses to which he pled guilty, rather than the mandatory life

imprisonment imposed by the "three strikes" provision, 18 U.S.C.

§ 3559(c)(1)(A), was not sufficient: "advice as to a mandatory minimum

that is no longer relevant can hardly achieve Rule 11's purpose, which

is to advise a defendant of the actual consequences of his plea so that

he can realistically decide whether to plead guilty." United States v.

Santo, 225 F.3d 92, 98 (1st Cir. 2000). The district court's failure




                                 -7-
to communicate the minimum mandatory life sentence to appellant

rendered the Rule 11 colloquy imperfect.

          Our inquiry does not end here, because the district court did

not completely fail to inform appellant of the consequences of his

plea.   The error, then, must now be analyzed for its effect on

appellant's substantial rights. If the error is harmless, Rule 11(h)

instructs us to uphold appellant's guilty plea. The district court

denied Castro-Gómez's motion to withdraw his plea in part because

appellant was fully aware that he could receive a life sentence.

Appellant was told at his change of plea hearing that he could receive

ten years to life for each of the offenses to which he intended to

plead guilty. He admits that no assurances were given to him that he

would receive a sentence closer to the alleged ten-year minimum rather

than the life maximum. The imposition of the life sentence, then, did

not come without warning.

          Even a mere possibility that Castro-Gómez could receive less

than a life sentence, however, likely played an important role in his

decision to plead guilty.     See Santo, 225 F.3d at 100 ("[I]t is

sufficiently likely that [appellant] misjudged the consequences of his

plea in light of the court's misinformation so that he must be allowed

to withdraw his plea.").    There are few instances that one could

imagine in which an accused individual would concede the right to trial

and the chance of acquittal, however slim, and submit to a guaranteed


                                 -8-
life sentence.    We cannot say that appellant would have made a

different choice had he known at the outset that he faced mandatory

life, but certainty is unnecessary in this regard. It is enough that

we find that this information could reasonably have affected his

decision to plead guilty.     Santo, 225 F.3d at 101.

          Appellant's situation is distinguishable from those found in

cases in which we have found harmless error.        In McDonald, the

defendant was sentenced to more time than the mandatory minimum

prescribed. 121 F.3d at 11 (sentenced to fifteen months more than the

ten-year minimum). We held that defendant's substantial rights were

not affected because the mandatory minimum had no actual impact on the

sentence that he received. Id. Appellant's sentence, in contrast, was

wholly dictated by the mandatory minimum, as no other sentence was

possible under the "three strikes" statute.

          Finally, whether or not appellant's counsel knew of the

government's filing of the Information or should have known, based on

appellant's prior record, that the government was likely to file such

Information is irrelevant.     Rule 11 requires that a defendant be

"personally" informed by the district court of the mandatory minimum

penalties that he faces. See McCarthy v. United States, 394 U.S. 459,

465-66 (1969); United States v. Medina-Silverio, 30 F.3d 1, 3 (1st Cir.

1994). A possible awareness by appellant's counsel of minimum and

maximum penalties did not absolve the district court of its


                                 -9-
responsibility to conduct a direct and complete Rule 11 interrogation

of the appellant. Cf. United States v. Gray, 63 F.3d 57, 61 (1st Cir.

1995) (rejecting government argument that defendant knew of the

applicable minimum penalty because the information had been contained

in the plea agreement that defendant signed; this did not absolve

district court of the duty to address the defendant personally in the

Rule 11 colloquy).

          Accordingly, the district court's denial of appellant's

motion to withdraw his plea is reversed.




                                -10-
