               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                              No. 92-8057

                           Summary Calendar



UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,

                                versus

MICHAEL ANTHONY JOHNSON,
                                             Defendant-Appellant.




            Appeal from the United States District Court
                  for the Western District of Texas


                          (January 28, 1993)

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Michael   Anthony    Johnson   pled    guilty    to   one    count    of

distribution of cocaine within 1,000 feet of a playground, in

violation of 21 U.S.C. §§ 841 (a) and 860 (a), and one count of

unauthorized   acquisition    and   possession   of    food      stamps,   in

violation of 7 U.S.C. § 2024 (b).     The district court accepted the

plea and sentenced Johnson to 210 months imprisonment and six years

supervised release.

     During the plea colloquy, the district court did not advise

Johnson that 21 U.S.C. § 860 (a) carries a mandatory minimum

penalty of one year imprisonment as Fed. R. Crim. P. 11 (c) (1)

provides.   On appeal Johnson contends that the court's failure to
comply with Rule 11 requires that his plea be set aside.   We agree

and therefore vacate Johnson's sentence and conviction and remand

the case in order that he may replead.

                                I.

     Rule 11 provides:

     Before accepting a plea of guilty or nolo contendere, the
     court must address the defendant personally in open court
     and inform him of, and determine that he 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 under some
     circumstances, and when applicable, that the court may
     also order the defendant to make restitution to any
     victim of the offense.

Fed. R. Crim. P. 11 (c).   During the plea colloquy, the district

court informed Johnson of the maximum penalty and supervised

release term, but omitted the mandatory minimum penalty of one year

imprisonment set out in 21 U.S.C. § 860 (a).     The court stated:

"[The] maximum possible punishment that can be assessed against a

person convicted of that offense could be as many as 40 years of

incarceration, followed by at least six years and up to 10 years of

supervised release . . . ."   Vol. II, at 20.

     The government concedes that the district court did not comply

fully with Rule 11, but contends that its omission of the statutory

minimum penalty was harmless error.   According to the government,

the court's mistake does not implicate the core concern that

defendants understand the consequences of their pleas, see, e.g.,

United States v. Adams, 961 F.2d 505, 510 (5th Cir. 1992); United

                                 2
States v. Bachynsky, 934 F.2d 1349, 1354 (5th Cir.), cert. denied,

112 S.Ct. 402 (1991), for a review of the transcript of Johnson's

plea proceeding discloses his cognizance of the minimum prison term

he faced. Just before the district court was to accept the plea,

Johnson's counsel intervened, stating "I need to get something into

the record for Mr. Johnson."      After Johnson agreed that counsel had

informed him that he would be subject to an enhanced sentence under

U.S.S.G. § 4B1.1 as a career offender, the following exchange took

place:

     [Counsel]: Okay. And you understand that you're looking
     in the neighborhood of 262 to 327 months, which is 21 to
     27 years, under the Federal Sentencing Guidelines. You
     understand that, do you not?

     Defendant Johnson: Yes, sir.

     [Counsel]: And understanding that and my explaining that
     to you two days ago or three days ago and then again--and
     then again today, do you still want to proceed with your
     plea?

     Defendant Johnson: Yes, sir.

     [Counsel]: Okay. You understand what you're looking at
     and you're going into this with your eyes wide open?

     Defendant Johnson: Yes.

Vol II, at 53-54.

     The    government   maintains       that   such    clear     evidence    of

Johnson's    understanding   of    his     sentencing     range     under    the

guidelines renders the district court's failure to inform him of

the statutory minimum sentence harmless error under Rule 11 (h).

This argument presupposes, however, that omissions of a mandatory

minimum penalty are susceptible to harmless error review.                    Our

precedents are to the contrary.       In United States v. Martirosian,

                                     3
967 F.2d 1036, 1039 (5th Cir. 1992), we held that "[t]he failure to

advise Martirosian of the minimum mandatory sentence was a complete

failure to address a Rule 11 core concern, mandating that the plea

be set aside." Rule 11 (h) does not apply to plea terms such as a

mandatory minimum penalty.        See also United States v. Pierce, No.

92-4232 (5th Cir. Dec. 29, 1992) (mistakes pertaining to maximum

sentence may not be reviewed for harmless error).             Even where the

plea transcript amply demonstrates that a defendant has been

advised of, and appears to understand, the minimum and maximum

penalties, "we cannot, as urged by the government, review [the

district court's] omission for harmless error." Martirosian, 967

F.2d at 1039.

     The government suggests that the presence of such manifest

evidence   of    Johnson's     understanding     of   his   sentence    in    the

transcript of the plea colloquy serves to distinguish this case

from Martirosian, where the only mention of the minimum sentence

occurred during a prior hearing.           The argument implicit in this

proffered distinction--that harmless error review extends to all

plea terms but should be confined to the plea transcript--would

seem to find support in the notes accompanying the 1983 amendments

to Rule 11.      Here, the advisory committee asserted that the new

harmless error provision would not threaten the integrity of

"important      Rule   11   safeguards,"   for   "the   kinds   of     Rule   11

violations which might be found to constitute harmless error upon

direct appeal are fairly limited." Fed. R. Crim. P. 11 (h) advisory

committee's note (1983 amend.). The committee attributed the small


                                      4
number of errors that might be held harmless not to the limited

application of 11 (h), but to the narrow scope of harmless error

review: "[T]he matter 'must be resolved solely on the basis of the

Rule 11 transcript' and other portions (e.g., sentencing hearing)

of the limited record made in such cases." Id. (quoting United

States v. Coronado, 554 F.2d 166, 170 n.5 (5th Cir.), cert. denied,

434 U.S. 870 (1977))).1

      As persuasive as the government's reading of Rule 11 might be,

it has not been adopted by this Circuit.                    In United States v.

Bachynsky, 934 F.2d 1349 (5th Cir.) (en banc), cert. denied, 112

S.Ct. 402 (1991), the government offered a similar argument,

contending     that   "the   adoption       of   11   (h)   .   .   .   effectively

eliminated automatic reversal, even for a total failure to satisfy

core concerns of Rule 11."          Id. at 1358.            We noted that this

interpretation was "not unpersuasive[]," but postponed resolution

of this question until it was "squarely presented to this court."

Id.       Until we revisit the issues left open in Bachynsky, the

holdings of prior panels control this panel's decision.                   Since the

district court's omission of the mandatory minimum sentence may not

be reviewed for harmless error, Martirosian, 967 F.2d at 1038, we

must vacate Johnson's sentence and conviction and remand the case

in order that he may replead.

      1
        For example, the committee indicated that a finding of
harmless error would be appropriate "where the judge's compliance
with subdivision (c) (1) was not absolutely complete, in that
some essential element of the crime was not mentioned, but the
defendant's responses clearly indicate his awareness of that
element." Fed. R. Crim. P. 11 (h) advisory committee's note
(1983 amend.) (citing Coronado, supra).

                                        5
VACATED and REMANDED.




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