In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1146

United States of America,

Plaintiff-Appellee,

v.

Guillermo Fernandez,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-CR-40087--William L. Beatty, Judge.


Argued November 29, 1999--Decided March 9, 2000



  Before Bauer, Easterbrook, and Evans, Circuit
Judges.

  Bauer, Circuit Judge. One month after pleading
not guilty to a one-count indictment charging him
with conspiracy to distribute marijuana,
Guillermo Fernandez ("Fernandez") changed his
mind and pleaded guilty. The district court then
sentenced Fernandez to 235 months in prison for
his role in the conspiracy. On appeal, Fernandez
argues that his guilty plea and ensuing sentence
should be vacated because of errors committed
during his change of plea hearing. Because we
conclude that the district court did not properly
inform Fernandez of his rights at his change of
plea hearing, we vacate Fernandez’ conviction and
sentence and remand so Fernandez may enter a new
plea.

I.   Background

  On October 23, 1996, a federal grand jury in
the Southern District of Illinois returned a one-
count indictment charging Fernandez and four
others with conspiring to distribute marijuana in
violation of 21 U.S.C. sec.sec. 841(a)(1) and
846. The indictment alleged that Fernandez
participated in a conspiracy to transport
approximately 453 kilograms/1 of marijuana from
southern Texas to points in Kentucky and
Illinois. According to the conspirators’ plans,
about half of the marijuana was to be delivered
to Fernandez or his agents in Louisville,
Kentucky and the other half was supposed to be
shipped to a co-conspirator in Chicago, Illinois.
Shortly after the marijuana shipment left Texas,
it was discovered by police in Marion, Illinois
when the driver of the tractor trailer carrying
the drugs stopped at a truck weigh station.

  Fernandez was arraigned on July 1, 1997 and
entered a plea of not guilty. One month later, on
August 1, 1997, Fernandez pleaded guilty to the
conspiracy at a change of plea hearing. Fernandez
promptly told his lawyer that he was willing to
plead guilty, but there was no plea agreement
arrived at between the government and him.
Because Fernandez’ native language is Spanish and
he understands very little English, an
interpreter was present at the hearing to
translate the proceedings into Spanish for
Fernandez and to relay his responses to the court
in English.

  During the change of plea hearing, Fernandez’
court-appointed lawyer, John Stobbs ("Stobbs"),
took the position that Fernandez would be subject
to a prison sentence between 70 and 108 months
under the Guidelines. In contrast to Stobbs’
sentencing calculation, the Assistant United
States Attorney estimated Fernandez’ potential
jail time between 210 and 262 months. According
to the government, Fernandez faced this
substantially harsher penalty because, although
the indictment only alleged a marijuana shipment
of 453 kilograms, the entire conspiracy actually
involved 3,000 kilograms of marijuana. Adding
this relevant conduct to Fernandez’ base offense
level, and tacking on an upward adjustment for
being a leader or organizer in the conspiracy,
the government concluded that Fernandez faced at
least 210 months in prison under the Guidelines.
The district court told Fernandez that it would
not resolve the dispute over his sentence at the
change of plea hearing, but said that the
disagreement would be settled at his sentencing
hearing. After listening to a factual basis for
the plea, the district court accepted Fernandez’
guilty plea and found him guilty as charged in
the one-count indictment.
  Not long after the change of plea hearing,
Stobbs moved to withdraw as Fernandez’ attorney.
As a basis for the motion, Stobbs cited a
previously undisclosed conflict of interest; it
turned out that Stobbs also represented an
alleged co-conspirator named in the same
indictment charging Fernandez. The district court
relieved Stobbs from the appointment and named
attorney David Williams ("Williams") to serve as
Fernandez’ new lawyer. Shortly after the court
appointed Williams, Fernandez filed a motion to
withdraw his guilty plea on the grounds that he
did not understand the full extent of the charges
against him or the penalties that could be
imposed.

  The district court held a hearing on Fernandez’
motion to withdraw his guilty plea. When asked at
that hearing whether he had understood everything
Stobbs had told him, Fernandez testified, "Not
everything. I thought I was pleading guilty
partially." In response to the question of
whether he understood Stobbs’ statements at the
change of plea hearing regarding the offense
levels set forth by the Guidelines, Fernandez
said, "I didn’t really understand exactly what
those levels meant." Later, when communications
between the court and Fernandez broke down
because of the language barrier, the court
interpreter interrupted by stating:

Your honor, I am quite confused here. He’s
talking about that he was feeling guilty or he
understood that these 3,000 [kilograms] related
to the case that had to do with the trailer, and
he didn’t think that there was anything else that
was going to be brought as a charge. And that is
what he didn’t understand exactly, that the
amounts that he was going to be charged for were
an overall count.

In response to the interpreter’s interjection,
the district judge told Fernandez that he would
have the opportunity to contest his liability for
the 3,000 kilograms of marijuana at his
sentencing hearing. Based on that representation,
Fernandez withdrew his motion and agreed to allow
his guilty plea to stand.

  At the sentencing hearing, the district court
attributed to Fernandez a quantity of marijuana
"in excess of 1,759 kilograms, but less than
3,000 kilograms." The court also found that
Fernandez was an organizer or leader in the
conspiracy. Based on these findings, Fernandez
earned a Guidelines offense level of 36.
Fernandez’ criminal history category under the
Guidelines was I, which meant that his range of
incarceration was 188 to 235 months. Judge Beatty
opted for the high-end of the range and sentenced
Fernandez to 235 months in prison. The district
court also sentenced Fernandez to five years of
supervised release, a $2,000 fine, and a $50
special assessment. Fernandez then filed a timely
notice of appeal.

  On appeal, Fernandez challenges the manner in
which the district court conducted his change of
plea hearing. According to Fernandez, the
district court failed to adequately apprise him
of the nature of the charge against him.
Fernandez also contends that the district court
failed to advise him of the applicable mandatory
minimum prison sentence./2 Fernandez insists
that these errors violate Rule 11 of the Federal
Rules of Criminal Procedure ("Rule 11") and
require that his guilty plea and resulting
sentence be vacated.

II.   Analysis

  By pleading guilty to a criminal charge, a
defendant waives several fundamental
constitutional guarantees. Because a defendant
sacrifices these critical rights, both due
process and Rule 11 require that a defendant’s
guilty plea be made voluntarily and knowingly.
United States v. Elkins, 176 F.3d 1016, 1021 (7th
Cir. 1999). Rule 11 is meant to ensure that a
defendant’s guilty plea is "a voluntary and
intelligent choice among the alternative courses
of action open to him." United States v. Saenz,
969 F.2d 294, 296 (7th Cir. 1992). On appeal, we
consider whether, when looking at the totality of
circumstances surrounding the plea, the district
court informed the defendant of his rights.
United States v. Richardson, 121 F.3d 1051, 1057
(7th Cir. 1997); United States v. Wagner, 996
F.2d 906, 912 (7th Cir. 1993).

  The applicable portions of Rule 11 provide
that:

(c) Before accepting a plea of guilty or nolo
contendere, the court must address the defendant
personally in open court and inform the defendant
of, and determine that the defendant understands,
the following:
(1) 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, including the effect of
any special parole or supervised release term,
the fact that the court is required to consider
any applicable sentencing guidelines but may
depart from those guidelines under some
circumstances, and, when applicable, that the
court may also order the defendant to make
restitution to any victim of the offense; and .
. . .

Fed. R. Crim. P. 11(c)(1). Rule 11, however,
creates a harmless error exception by declaring
that "[a]ny variance from the procedures required
by this rule which does not affect substantial
rights shall be disregarded." Fed. R. Crim. P.
11(h). "The harmlessness inquiry naturally should
focus on ’whether the defendant’s knowledge and
comprehension of the full and correct information
would have been likely to affect his willingness
to plead guilty.’" United States v. Padilla, 23
F.3d 1220, 1221 (7th Cir. 1994) (quoting United
States v. Johnson, 1 F.3d 296, 302 (5th Cir.
1993) (en banc)).


  A.   Nature of the Charge

  Rule 11 states that "before accepting a plea of
guilty or nolo contendere, the court must address
the defendant personally in open court and inform
the defendant of, and determine that the
defendant understands . . . the nature of the
charge to which the plea is offered." Fed. R.
Crim. P. 11(c)(1). Although Rule 11’s language
demands that the trial judge personally inform
the defendant of the nature of the charge to
which he is pleading guilty, this court does not
require "literal compliance" with the Rule. See
United States v. LeDonne, 21 F.3d 1418, 1423-24
(7th Cir. 1994); United States v. Musa, 946 F.2d
1297, 1302 (7th Cir. 1991). Instead, when
determining whether a defendant understands the
nature of the crime to which he is admitting
guilt, we have approved practices in which
prosecutors identify the elements of the charged
offense followed with an inquiry by the court
confirming the defendant’s understanding of the
crime. See LeDonne, 21 F.3d at 1424. Similarly,
we have recognized the validity of having
prosecutors recount the specific facts which
satisfy the elements of the charged offense
followed by an admission of those facts by the
defendant under questioning by the trial judge.
Id.

  Unless the defendant fully comprehends the
elements of the crime to which he is confessing,
"his plea cannot be said to have been knowingly
and voluntarily entered." LeDonne, 21 F.3d at
1423 (citing Musa, 946 F.2d at 1303). To
determine whether the defendant fully understands
the nature of the charge to which he is admitting
guilt, we have adopted a totality of the
circumstances approach. Under this test, we
consider (1) the complexity of the charge; (2)
the defendant’s level of intelligence, age, and
education; (3) whether the defendant was
represented by counsel; (4) the judge’s inquiry
during the plea hearing and the defendant’s
statements; and (5) the evidence proffered by the
government. LeDonne, 21 F.3d at 1423; Musa, 946
F.2d at 1304.

  In this case, the district court engaged in the
following colloquy to verify whether Fernandez
understood the nature of the drug conspiracy
charge to which he was pleading guilty:

THE COURT: Okay. Now you are here in court with
your lawyer and I want to talk now about some of
the rights that you have and a little bit about
what this case is about. Have you read the
indictment in this case?
THE INTERPRETER: Yes, I have.
THE COURT: Did you read it yourself, or did you
have someone read it to you?
THE INTERPRETER: My attorney read it to me.
THE COURT: And your attorney speaks Spanish does
he?
THE INTERPRETER: Yes.
THE COURT: Did you understand what he said to
you when he read it to you?
THE INTERPRETER: Yes.
THE COURT: And did you--did he answer any
questions that you had about the indictment?
THE INTERPRETER: Yes.
THE COURT: So do you understand then what you
are charged with here in the court today?
THE INTERPRETER: Yes, sir.
THE COURT: Are there any questions at all about
anything in this indictment you have?
THE INTERPRETER: No.

While this discussion is somewhat helpful in
evaluating whether Fernandez understood the
conspiracy charge, it does not end our inquiry.
We have repeatedly held that simply asking a
defendant if he has read and discussed the
indictment with his attorney is insufficient to
determine if he truly understands the nature of
the charge against him. See LeDonne, 21 F.3d at
1424; United States v. Ray, 828 F.2d 399, 410
(7th Cir. 1987); United States v. Darling, 766
F.2d 1095, 1098 (7th Cir. 1985).

  Perhaps recognizing that questioning Fernandez
about whether he read and understood the
indictment was not enough, the district court
also asked the AUSA to provide a factual basis
for the plea, which she did. During that factual
proffer, the AUSA described the specific acts
committed by several individuals to transport the
453 kilograms of marijuana from southern Texas to
its intended destinations in Kentucky and
Illinois. The AUSA described the planned
distribution of the contraband and named the
individuals who worked for Fernandez. Finally,
the prosecutor gave the factual basis for the
government’s contention that Fernandez was a
leader of the conspiracy and its assertion that
Fernandez should be held accountable for amounts
of marijuana in excess of that charged in the
indictment.

  At the conclusion of the government’s factual
proffer, the district court and Fernandez had the
following exchange:

THE COURT: Well, now, with the exception of the
last part about the relevant offense conduct
being 3,000 kilograms, and the bit about you’re
[sic] being a leader or manager, the other
statement that she made about that you did in
connection with the drug transaction and your
part in the drug transaction, factually, did you,
in fact, do the things that she says you did?
THE INTERPRETER: Not all of the acts, partially.
THE COURT: What acts didn’t you do?
THE INTERPRETER: Yes, your Honor, I did.
THE COURT: He did those things?
THE INTERPRETER: Yes.
THE COURT: Okay. That’s what you’re pleading
guilty to. Do you understand that?
THE INTERPRETER: Yes, your Honor.

Following this colloquy, the court accepted the
guilty plea and adjudged Fernandez guilty of the
offense charged in the indictment.

  Although this is a close case, we cannot
conclude that Fernandez was fully aware of the
nature of the crime to which he pleaded guilty.
Applying the five factors identified in LeDonne,
21 F.3d at 1423, it is not at all clear from this
record that Fernandez’ guilty plea was knowing
and voluntary. Rather, under our totality of the
circumstances approach, we find this guilty plea
enveloped in confusion and misunderstanding.
Additionally, it appears from the record that the
district court fell short of fulfilling its
obligations under Rule 11.

  The charge against Fernandez was conspiracy to
distribute marijuana. While a drug conspiracy
charge may seem simple or commonplace to well-
educated prosecutors, defense attorneys, and
judges who deal with them on a daily basis, "the
charge of ’conspiracy’ is not a self-explanatory
legal term or so simple in meaning that it can be
expected or assumed that a lay person understands
it." United States v. Wetterlin, 583 F.2d 346,
350 (7th Cir. 1978). Fernandez is a native of
Mexico, has only a fifth grade education, and
understands very little English. Aside from one
charge for driving under the influence of
alcohol, Fernandez had never before been charged
with a crime. These facts strongly suggest that,
like most lay people, Fernandez would not
understand the term "conspiracy" without some
further explanation. Based on the complexity of
the charge and Fernandez’ lack of education or
familiarity with the criminal justice system, the
first two factors articulated in LeDonne favor a
finding that Fernandez did not fully understand
the nature of the conspiracy charge to which he
was admitting guilt. See United States v.
Longoria, 113 F.3d 975, 977 (9th Cir. 1997)
(guilty plea "cannot be truly voluntary unless
the defendant possesses an understanding of the
law in relation to the facts") (citations
omitted).
  Turning to the third factor, although Fernandez
was represented by attorney Stobbs at his change
of plea hearing, Stobbs provided representation
that left much to be desired. Mainly, Stobbs had
a very serious conflict of interest that he
failed to disclose to Fernandez. Notwithstanding
his knowledge of this conflict, Stobbs
represented Fernandez from indictment to guilty
plea and may well have given Fernandez advice
that convinced him to plead guilty. Although the
record does not disclose whether Fernandez’
guilty plea benefitted Stobbs’ other client, any
conflict of interest during the vital period in
which a defendant is deciding whether to plead
guilty is a serious transgression. The upshot of
these facts is that while Fernandez did have
counsel to advise him, we cannot say with any
degree of certainty that his counsel’s assistance
was more helpful than harmful.

  The fourth factor, the depth and clarity of the
discussion between the trial judge and the
defendant concerning the nature of the charge,
illustrates that Fernandez experienced
substantial confusion over the crime to which he
was admitting guilt. For example, when the
district court asked Fernandez if he had done the
things set forth in the AUSA’s factual proffer,
Fernandez responded, "Not all of the acts,
partially." When asked which acts he didn’t
commit, Fernandez changed his answer and replied,
"Yes, your Honor, I did." In response to this new
and drastically different answer, the district
judge bypassed Fernandez altogether and
questioned the interpreter directly by asking,
"He did those things?" To which the interpreter
answered "yes." The confusion over precisely what
acts Fernandez admitted continued at the hearing
on his motion to withdraw the guilty plea. During
that hearing, the trial court asked Fernandez if
he had understood everything that Stobbs had told
him at the change of plea hearing and Fernandez
responded, "Not everything. I thought I was
pleading guilty partially."

  In short, Fernandez’ accounts of what acts he
admitted and those he denied were very murky.
Based on this record, it is impossible to
ascertain precisely what acts Fernandez admits
and which he denies. Fernandez twice told the
district court that he was only "partially"
guilty. However, without further investigatory
questions to flush out the details of Fernandez’
participation in the conspiracy, the district
court accepted the guilty plea. Because we cannot
glean a clear understanding of Fernandez’
participation in the crime charged, it is
impossible to determine whether Fernandez himself
understood the nature of the crime to which he
was pleading guilty.

  The final factor in our totality of the
circumstances approach requires us to analyze the
government’s proffered evidence. We find the
government’s factual proffer detailed and,
normally, it would probably be sufficient to
secure Fernandez’ guilty plea. The facts show,
however, that this was anything but an ordinary
change of plea hearing. Fernandez’ attorney had
a serious conflict of interest; there was no
written and signed plea agreement with the
government; and the language barrier between
Fernandez and the district judge caused
substantial confusion during the hearing--so much
confusion that the district court resorted to
questioning the interpreter rather than
Fernandez. Neither the district court nor the
AUSA ever explained the nature of the crime of
conspiracy to Fernandez. Additionally, Fernandez
changed his responses to whether he had, in fact,
committed the acts that the AUSA related in the
factual proffer. And, no one bothered to clarify
the ambiguity with detailed follow-up questions
to determine whether Fernandez understood that he
had committed acts that rendered him guilty of
conspiracy to distribute marijuana. While there
was nothing wrong with the AUSA’s factual proffer
on its face, the surrounding chaos at this change
of plea hearing significantly negated any
confidence in Fernandez’ understanding of and
admission to those facts.

  Because a defendant’s clear understanding of the
nature of the charge to which he is pleading
guilty relates to the very heart of the
protections afforded by the Constitution and Rule
11, we cannot conclude that the error in this
case was harmless. Instead, our review of this
record leads us to believe that allowing
Fernandez’ guilty plea in this case to stand
would deprive him of substantial constitutional
rights.


  B.   Mandatory Minimum Sentence

  Fernandez also complains that the district court
failed to adequately inform him of the applicable
mandatory minimum sentence. The government’s
initial response to this argument is that
Fernandez has waived the issue. We find the
government’s position unpersuasive. In his motion
to withdraw the guilty plea, Fernandez stated
that he did not understand "the penalties which
could be assessed." This statement adequately
preserved his argument that the district court
never advised him of the mandatory minimum
sentence which a guilty plea would trigger. Even
if Fernandez had not properly preserved the
issue, he could not have waived it. This court
has previously treated Rule 11 objections with
"extra solicitude" and held that "a claim of non-
compliance with Rule 11(d) will not be deemed
waived if a party fails to present it in the
district court." United States v. Cross, 57 F.3d
588, 590 (7th Cir. 1995) (citing United States v.
Ruiz-del Valle, 8 F.3d 98, 102 (1st Cir. 1993);
United States v. Young, 927 F.2d 1060, 1061 (8th
Cir. 1991); United States v. Coronado, 554 F.2d
166, 170 n.5 (5th Cir. 1977)). Although Cross
addressed the protections afforded by Rule 11(d)
rather than Rule 11(c), we can conceive of no
principled reason to treat the important rights
afforded by these subsections any differently.

  Since we find that Fernandez preserved the
matter for appellate review, we consider the
merits of his argument that the district court
failed to advise him of the applicable mandatory
minimum. This court explained the law governing
this issue in United States v. Padilla, 23 F.3d
1220, 1222 (7th Cir. 1994):

Failure to inform a defendant about applicable
mandatory minimums can be, but is not
necessarily, a serious oversight. The inquiry is
fact bound. If, for instance, the record
discloses that a defendant was aware when
pleading guilty that the sentencing guidelines
would subject him to a sentence well in excess of
any statutory mandatory minimum likely applicable
to his case, the failure to advise him of such
minimums during the plea hearing cannot
reasonably be said to have affected his decision
to accept the plea. On the other hand, where it
is not clear that a defendant was aware of the
sentencing guideline range into which his
relevant conduct would likely fall, the failure
to inform him of the probable applicability of
statutorily mandated minimums may well have
impaired his ability to understand his situation
fully. The relevant inquiry must center upon what
the defendant actually knows when he pleads
guilty--and without an affirmative indication in
the record we cannot assume that he knows
anything about the sentence restrictions he
faces--, what information would have been added
(or what corrections made) to his pool of
knowledge by compliance with Rule 11 demands, and
how the additional or corrected information would
have likely affected his decision making.

Padilla, 23 F.3d at 1222 (citations omitted). The
court went on to explain that problems often
develop in cases such as this one, where a
defendant’s sentence will depend on a calculation
of drug quantity that is not determined until
after the plea process is completed. Id. at 1223.
Therefore, "any information the district court
could present the defendant about potential
minimum and maximum penalties is typically
somewhat speculative. This, however, cannot
relieve the court of its responsibility to make
a defendant aware of his likely exposure." Id. at
1224.

  Like the other colloquy at his change of plea
hearing, the conversation concerning Fernandez’
potential sentence was consumed by confusion.
When asked by the district court for an initial
sentencing calculation under the Guidelines,
Stobbs estimated Fernandez’ potential prison time
somewhere between 70 and 108 months. In stark
contrast, the government projected that under the
Guidelines Fernandez would have to serve between
210 and 262 months. After hearing the respective
positions about Fernandez’ sentence under the
Guidelines, the district court engaged Fernandez
in the following colloquy regarding his potential
sentence:

THE COURT: What’s the maximum; not under the
Guidelines but statutory?
[AUSA]: Statutory maximum is life. This carries
a ten-year to life.
THE COURT: All right. So Mr. Fernandez there has
been no agreement between your lawyer and the
Government’s lawyer. So if you’re gonna plead
guilty you should plead guilty understanding that
you could be, you could be, sentenced up to life
in the federal penitentiary. Do you understand
that?
THE INTERPRETER: Yes.
THE COURT: You can also take into consideration
that the Government’s position is that you would
be--under the Guideline Act would be sentenced to
a sentence of between 210 to 262 months. Do you
understand that?
THE INTERPRETER: Yes.
THE COURT: Now you’re [sic] lawyer is going to
argue that it should be something less than that.
And he will make arguments and put on evidence to
support that. [The AUSA] representing the
Government will be arguing that it should be 262
months; which is twenty-some-odd years. Do you
understand that?
THE INTERPRETER: Yes.
THE COURT: And you want to plead guilty under
those circumstances?

  After this question, Stobbs interrupted the
court and stated Fernandez’ desire to talk to the
government and make a factual proffer in an
effort to receive a reduced sentence. In response
to this interruption, the AUSA expressed a
willingness to listen to what Fernandez had to
say, but declined to promise him a lesser prison
sentence. The district court then resumed
advising Fernandez of his potential jail time by
stating:

THE COURT: Mr. Fernandez, I want to make it very
clear to you. If you plead guilty here today I’m
going to have a Presentence Report prepared.
Someone will check into your background and go
into all the facts of the case and your family
and your employment and all those things. And
I’ll have that and you’ll get a copy of it;
you’ll see it. And then when you come back up
here in two or three months to be sentenced, I’ll
listen to whatever argument the Government wants
to make and whatever argument you want to make
and whatever evidence anybody wants to put on.
And when I’ve done all that you may very well get
262 months in the penitentiary. I want to be
sure--this isn’t just stuff I’m saying. If you’re
going to plead guilty you got [sic] to understand
that you may--and do it on the assumption that
you will get 262 months. I don’t want you
pleading guilty--I mean, I don’t want you doing
this thinking you’re going to get the low end of
the deal. You may get the worst end of the deal.
And if you don’t want to do it that way then
don’t plead guilty. Plead not guilty and go to
trial.

And your lawyer isn’t going to serve this time.
At 262 months or the 160, whatever it is,
regardless of what it is, Mr. Stobbs will not
serve that time. You will. So it’s a decision
that you have to make. You can consider his
advice and you should. You should listen to him
and consider his advice; but, in the final
analysis it’s your decision to make and you will
serve the time. So, you still want to plead
guilty?
THE INTERPRETER: Yes.

  While the district court was careful to advise
Fernandez of his potential statutory maximum and
his high-end sentence under the Guidelines, there
was no mention of a mandatory minimum sentence.
Rather, as is readily apparent from the foregoing
colloquy, the district judge never informed
Fernandez that by pleading guilty he would
trigger a mandatory minimum prison sentence./3
Under the applicable statutes, if the district
court held Fernandez accountable for the 453
kilograms of marijuana charged in the indictment,
then his mandatory minimum sentence would have
been 5 years. See 21 U.S.C. sec. 841(b)
(1)(B)(vii) ("In the case of a violation . . .
involving 100 kilograms or more of a mixture or
substance containing a detectable amount of
marijuana . . . such person shall be sentenced to
a term of imprisonment which may not be less than
5 years . . ."). On the other hand, if Fernandez
were ultimately found responsible for the alleged
relevant conduct--up to 3,000 kilograms of
marijuana, according to the government--then his
statutory minimum would have increased to 10
years. See 21 U.S.C. sec. 841(b)(1)(A)(vii) ("In
the case of a violation . . . involving 1,000
kilograms or more of a mixture or substance
containing a detectable amount of marijuana . .
. such person shall be sentenced to a term of
imprisonment which may not be less than 10 years
. . ."). Regardless of which statute was
eventually triggered by the district court’s
findings at the sentencing hearing, it appears
that neither the trial court nor Fernandez’
attorney ever informed him of their mandatory
application.

  This case fits squarely into the situation
contemplated in Padilla. There is nothing to
suggest that Fernandez was ever alerted to the
mandatory minimum sentences applicable in his
case. Additionally, the drug quantity
attributable to Fernandez was disputed and not
known at the time of the guilty plea. And,
Fernandez’ attorney represented to Fernandez and
to the court that Fernandez’ Guideline range of
incarceration could be as low as 70 to 108
months. Thus, under these circumstances, it was
"not clear that [Fernandez] was aware of the
sentencing guideline range into which his
relevant conduct would likely fall, [and] the
failure to inform him of the probable
applicability of statutorily mandated minimums
may well have impaired his ability to understand
his situation fully." Padilla, 23 F.3d at 1222.

  The error in this case cannot be brushed aside
as harmless. As the court noted in Padilla, the
"relevant inquiry must center upon what the
defendant actually knows when he pleads guilty."
Id. Here, Fernandez knew only that his sentence
was disputed and that it would ultimately fall
somewhere between 70 months and 262 months. Aside
from this, all Fernandez knew was that he would
have the opportunity to present evidence and make
his arguments concerning his sentence at the
sentencing hearing. Because the disparity between
what Fernandez knew to be the lowest sentence he
could receive (70 months) and the undisclosed
ten-year mandatory minimum sentence (120 months)
is so great, Fernandez’ decision to plead guilty
could not have been fully informed of the
penalties he faced. As the court put it in
Padilla, "we think it patent that the failure to
inform a defendant of a mandatory five-year or
ten-year minimum sentence cannot be deemed
inconsequential to the decision to plead when no
firm indication exists of the defendant’s
specific awareness at time of plea that a
sentence of such an order is likely." Padilla, 23
F.3d at 1223.
III.   Conclusion

  For the foregoing reasons, we vacate Fernandez’
conviction and sentence and remand this case to
the district court so Fernandez may enter a new
plea.


/1 The indictment alleges that the shipment of
marijuana was "approximately 1,000 pounds." One
thousand pounds equals about 453 kilograms in the
metric system of weight measurement. Since the
United States Sentencing Guidelines refer to drug
weight quantities in terms of the metric system,
we will use the metric weights rather than the
English weight system employed in the indictment.

/2 Fernandez also argues that the trial court did
not properly inform him of his right to a jury
trial because the district court never used the
term "jury" when advising him of his rights.
Because we find that the district court failed to
properly inform Fernandez of the nature of the
charge to which he pled guilty and the applicable
mandatory minimum sentences, we do not reach this
argument.

/3 The government argues that Fernandez was advised
on the ten-year mandatory minimum that applied in
his case because, in response to a question about
the maximum possible sentence from the court, the
AUSA said, "Statutory maximum is life. This
carries a ten-year to life." We find this
argument unpersuasive. First, this statement was
nothing more than a passing comment made by a
prosecutor. Second, the prosecutor directed the
statement to the judge, not to Fernandez. And,
third, the remark was given in response to a
question about the statutory maximum, not the
statutory minimum. Under these circumstances, it
would be manifestly unfair to attribute knowledge
of the ten-year mandatory minimum to Fernandez.
