
USCA1 Opinion

	




                            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                                         -2-          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.                                         -3-                      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                                         -4-          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.                                         -5-          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                                         -6-          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                                         -7-          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,                                         -8-          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                                         -9-          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.                                         -10-
