                                                 NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 07-3911
                                 _____________

                  GOVERNMENT OF THE VIRGIN ISLANDS

                                         v.

                           KIRSTEN GREENAWAY,
                                          Appellant

                                 _____________

                     On Appeal from the District Court of the
                       Virgin Islands - Appellate Division
                                (D.C. No. 04-cr-137)
                      Chief Judge: Hon. Raymond L. Finch
                      District Judge: Hon. Curtis V. Gomez
                     Superior Court Judge: Hon. Edgar Ross
                                 _______________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                                  May 6, 2010

           Before: SMITH, CHAGARES and JORDAN, Circuit Judges.

                              (Filed:May 11, 2010)




                           OPINION OF THE COURT
                               _______________

JORDAN, Circuit Judge.
         Kirsten Greenaway appeals the judgment of the Appellate Division of the District

Court of the Virgin Islands of the United States, which affirmed the judgment of the

Superior Court of the Virgin Islands 1 sentencing her to twenty years’ imprisonment

following her guilty plea to second degree murder. Greenaway contends that she should

be permitted to withdraw that plea because it was not given knowingly and voluntarily.

For the reasons that follow, we reverse the judgment of the Appellate Division and

remand with instructions to return the case to the Superior Court, before which

Greenaway should be given an opportunity to withdraw her plea.

I.       Background

         On November 4, 1999, Greenaway and three co-conspirators, Eladio Camacho,

Ottice Bryan, and Selvin Hodge, hatched a plot to rob Duvalier Basquin, a taxi driver.

Greenaway approached Basquin’s cab, representing herself to be a fare-paying customer.

Greenaway then instructed Basquin to take her to Bolongo Bay on St. Thomas, where she

and Basquin met her three co-conspirators. Greenaway exited the cab and left the scene

as Camacho, Bryan, and Hodge beat, stabbed, and robbed Basquin. Basquin died as a

result of the injuries he sustained during the robbery.

         The four co-conspirators were arrested and charged in the Superior Court with first

degree murder. The defendants and the government began plea negotiations, as a result

of which Camacho agreed to plead guilty to involuntary manslaughter under V.I. C ODE

     1
   The Superior Court was known as the Territorial Court at the time of Greenaway’s
sentencing. For ease of reference, we identify the tribunal using its current name.

                                              2
A NN., tit. 14, § 924(2), and the remaining defendants received plea deals for second

degree murder under V.I. C ODE A NN., tit. 14, § 922(b). The four defendants participated

in a joint change-of-plea hearing that, according to Greenaway, was disorganized and

confused her. Following a discussion of the terms of the defendants’ plea deals, the

government described the facts of Basquin’s attack. Greenaway rejected the

government’s description and expressed reluctance to plead guilty, stating that “I never

plan to catch no taxi [sic].” (App. at 91.) After a discussion with the Court, however, she

adopted the facts submitted by the government. The Court and defense counsel then

disagreed about whether malice aforethought was an essential element of second degree

murder. The Court properly concluded that malice was a necessary component of the

crime, see Gov’t of the V.I. v. Sampson, 94 F. Supp. 2d 639, 644 (D.V.I. 2000), and

Greenaway stated that she would not plead guilty. After further discussion with counsel,

however, Greenaway resolved her hesitation and indicated that she was willing to enter a

plea in accordance with her plea agreement.

       The Superior Court accepted Greenaway’s plea; however, it never informed her

that a conviction for second degree murder entailed a mandatory minimum sentence of

five years imprisonment under Virgin Islands law. See V.I. C ODE A NN. tit. 14, § 923(b)

(“Whoever commits murder in the second degree shall be imprisoned for not less than

five (5) years ... .”). The record contains no indication that Greenaway knew of this

mandatory minimum penalty. The Court sentenced her to twenty years’ imprisonment,



                                              3
while Camacho received five years, and Bryan and Hodge were each sentenced to thirty

years.

         Greenaway appealed to the Appellate Division of the District Court,2 arguing that

the disparity between her twenty-year sentence and Camacho’s five-year sentence

violated her due process rights, that the trial court failed to consider her good behavior

following her arrest as a mitigating factor when imposing a sentence, and that her

twenty-year sentence violated the Eighth Amendment’s prohibition against cruel and

unusual punishment. Greenaway did not challenge her guilty plea in any way before the

Appellate Division, which affirmed the judgment and sentence of the Superior Court.

Greenaway then filed a timely appeal to our court.




  2
    On January 29, 2007, the Supreme Court of the Virgin Islands assumed the District
Court’s appellate jurisdiction. See Hypolite v. People of the V.I., S. Ct. Crim. No.
2007-135, 2009 WL 152319, at *2 (V.I. Jan. 21, 2009) (“The Supreme Court officially
assumed appellate jurisdiction over appeals from the Superior Court on January 29,
2007.”); see also Supreme Court of the United States Virgin Islands, History of the Court,
at http://www.visupremecourt.org/Know_Your_Court/History_of_the_Court/index.asp
(last accessed Apr. 7, 2010). However, because Greenaway appealed from the Superior
Court before the Supreme Court of the Virgin Islands had assumed jurisdiction, her
appeal remains with the Appellate Division of the District Court. See 48 U.S.C.
§ 1613a(d) (“The establishment of the [Supreme Court of the Virgin Islands] shall not
result in the loss of jurisdiction of the district court over any appeal then pending in it.
The rulings of the district court on such appeals may be reviewed in the United States
Court of Appeals for the Third Circuit and in the Supreme Court notwithstanding the
establishment of the [Supreme Court].”).

                                              4
II.    Discussion 3

       In the appeal before us, Greenaway’s sole argument is that her guilty plea was not

knowing, voluntary, and intelligent, an issue that she failed to preserve before either the

Superior Court or the Appellate Division. We therefore review for plain error. United

States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008). To establish plain error, Greenaway

must (1) identify an error that (2) appears on the face of the proceedings and (3) affects

substantial rights and that, unless corrected, would (4) result in a miscarriage of justice.

United States v. Cesare, 581 F.3d 206, 209 (3d Cir. 2009).

       Greenaway has identified numerous defects in her plea colloquy that allegedly

rendered her plea uninformed and unintelligent. She claims that the lack of clarity

regarding whether malice aforethought was required for second degree murder confused

her, and that the government’s initial statement of the facts, to which she objected, made

it difficult for her to understand the factual basis of the crime for which she was admitting

culpability. She also argues that the Superior Court’s failure to inform her of her right to

appeal, of the circumstances under which she would be permitted to withdraw her plea,

and of the mandatory minimum sentence resulted in her plea being uninformed.4


  3
   The Appellate Division of the District Court had jurisdiction to hear Greenaway’s
appeal from the Superior Court under 48 U.S.C. § 1613a(a). We have jurisdiction under
48 U.S.C. § 1613a(c) and 28 U.S.C. § 1291.
  4
   Greenaway also asserts that the Court failed to inform her of the statutory maximum
sentence even though the Court indicated that “[f]or Second Degree [Murder] ... the
maximum possible punishment is up to life imprisonment.” (App. at 81.) Greenaway is
technically correct, in that a court may not impose a life sentence for second degree

                                              5
We need not discuss each of Greenaway’s contentions at length, however, because we

conclude that the Superior Court’s failure to apprise her of the mandatory minimum

sentence was alone sufficient to render her plea less than knowing, voluntary, and

intelligent.

       “In order for a guilty plea to comply with the requirements of the Due Process

Clause of the Fifth Amendment, it must be knowing, voluntary and intelligent.” United

States v. Tidwell, 521 F.3d 236, 251 (3d Cir. 2008). That standard requires the defendant

to “be advised of and understand the direct consequences of a plea.” United States v.

Salmon, 944 F.2d 1106, 1130 (3d Cir. 1991) (emphasis in original). In Jamison v. Klem,

544 F.3d 266 (3d Cir. 2008), a state habeas case filed under 28 U.S.C. § 2254, the

petitioner pled guilty following a colloquy during which he was informed of the

maximum sentence for his crime but not of the mandatory minimum. Id. at 268-69. He

filed a petition for a writ of habeas corpus, seeking leave to withdraw his guilty plea on

the ground that the plea was uninformed. Id. at 271. The district court denied the motion,

and we reversed. On appeal, we found that knowledge of the maximum sentence alone

was constitutionally inadequate to ensure that the defendant entered a knowing and



murder but must instead sentence the defendant to a term of years. Ruiz v. United States,
365 F.2d 500, 501 (3d Cir. 1966). As a practical matter, though, the court may impose a
term of years that will unquestionably exceed the defendant’s remaining life expectancy.
Id. Thus, we believe that the Superior Court’s description of the maximum sentence,
while technically flawed, was nevertheless sufficient to apprise Greenaway that her plea
could result in her spending the remainder of her life in prison. In any event, the
maximum penalty should be made clear to Greenaway during the proceedings on remand.

                                             6
intelligent plea. Id. at 277. Rather, “[i]t is at least as important for the accused to be

accurately informed of the minimum amount of incarceration that he/she will have to

serve pursuant to a guilty plea.” Id. Therefore, the petitioner had not entered a knowing,

voluntary, and intelligent plea, and we remanded the case to the district court with

instructions to issue a writ of habeas corpus allowing him to withdraw the plea before the

state court. Id. at 279.

       Jamison compels us to vacate the District Court’s judgment upholding

Greenaway’s plea. Without knowing the minimum sentence for second degree murder,

Greenaway could not understand the direct consequences of her plea, thereby rendering it

uninformed and, by definition, less than knowing. The Superior Court’s acceptance of an

uninformed plea constitutes error that is plain from the face of the proceedings.5 We

  5
   Jamison had not yet been decided at the time of Greenaway’s guilty plea colloquy on
April 13, 2004. However, the Supreme Court had for several decades required—and
continues to require—that defendants be informed of the direct effects of a plea and have
“a full understanding of what the plea connotes and of its consequence.” Boykin v.
Alabama, 395 U.S. 238, 244 (1969); see also Brady v. United States, 397 U.S. 742, 755
(1970) (requiring defendants to be informed of the “direct consequences” of pleading
guilty). In Jamison, we concluded that few, if any, consequences of pleading guilty are
more direct than the mandatory prison term that a defendant will receive once the court
accepts the plea. 544 F.3d at 277. For that reason, several of our sister courts of appeals
had concluded well before 2004 that knowledge of the mandatory minimum sentence is
an essential component of a knowing plea. See, e.g., United States v. Clark, 274 F.3d
1325, 1330 (11th Cir. 2001) (“Before accepting a guilty plea, the court must specifically
inform the defendant of any mandatory minimum penalty provided by law.”); United
States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) (finding that failure to inform the
defendant of the mandatory minimum sentence qualifies as plain error, even though it
may not affect substantial rights in every case); see also United States v. General, 278
F.3d 389, 394 (4th Cir. 2002) (same). Thus, even though the Superior Court did not have
the benefit of our decision in Jamison at the time of Greenaway’s hearing, the

                                               7
further conclude that this error affected Greenaway’s substantial rights because it

prevented her from entering an informed plea with knowledge of the full range of effects

that would flow from it. Cf. Goodson, 544 F.3d at 540 (finding, in a case challenging the

validity of an appellate waiver, that an error affects a defendant’s substantial rights if it

“preclud[ed] him from knowing of and understanding the significance of the binding

appellate waiver in the plea agreement”). Finally, few principles of criminal law are more

essential to the fairness of a plea colloquy than the requirement that a defendant know of

the consequences of a guilty plea before the court accepts it. See Boykin v. Alabama, 395

U.S. 238, 243-44 (1969) (“What is at stake for an accused facing death or imprisonment

demands the utmost solicitude of which courts are capable in canvassing the matter with

the accused to make sure he has a full understanding of what the plea connotes and of its

consequence.”). We therefore conclude that affirming the District Court’s judgment over

Greenaway’s uninformed plea would result in a miscarriage of justice. Cf. United States

v. Corso, 549 F.3d 921, 929 (3d Cir. 2008) (stating that we will find a miscarriage of

justice if an error would “affect[] the fairness, integrity or public reputation of judicial

proceedings” (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). In short




requirement that the court inform her of the mandatory minimum sentence was
sufficiently well-established that its failure to do so constitutes plain error. See United
States v. Ellis, 326 F.3d 593, 596-97 (4th Cir. 2003) (noting that, in the absence of
precedent from within a circuit, “decisions by other circuit courts of appeals are pertinent
to the question of whether an error is plain”).

                                               8
because Greenaway has established that her plea to second degree murder was not

knowing,6 the Superior Court’s acceptance of that plea constitutes plain error.

III.   Conclusion

       Accordingly, we will reverse the judgment of the Appellate Division of the District

Court. We will remand this case with instructions that the Appellate Division return the

matter to the Superior Court, before which Greenaway must be given an opportunity to

withdraw her guilty plea.




  6
    It can certainly be argued that a plea that is not knowing is, per force, also not
intelligent or, in a meaningful sense, voluntary, but we need not parse the meaning of
each term in the test. That the plea was not knowing is alone sufficient to carry the day.

                                             9
