In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2263

United States of America,

Plaintiff-Appellee,

v.

Richard E. Driver,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. NA 99-011-CR-01--S. Hugh Dillin, Judge.

Argued January 23, 2001--Decided March 9, 2001



  Before Posner, Easterbrook, and Ripple, Circuit
Judges.

  Easterbrook, Circuit Judge. Richard Driver
pleaded guilty to using interstate facilities in
a contract-murder scheme, and to carrying a
firearm during and in relation to that offense.
His sentence was 160 months’ imprisonment--light
punishment for crimes of this gravity. But Driver
nonetheless has appealed, testing his luck. His
lawyer asks us to set aside his client’s plea, a
step that if taken would cost Driver any reward
for acceptance of responsibility, see United
States v. Lopinski, No. 00-2464 (7th Cir. Jan. 8,
2001), and could lead the prosecutor to withdraw
other favorable elements of the plea bargain,
even if Driver decides to enter a second guilty
plea.

  When taking Driver’s guilty plea, the district
judge failed to comply with Fed. R. Crim. P. 11.
The many shortcomings are conceded by the
prosecutor--who sat quietly in the district court
and neglected to alert the judge to the problem.
The district court failed to remind Driver of the
maximum possible penalty, failed to explain that
imprisonment would be followed by supervised
release, failed to advise Driver that if he went
to trial he would be entitled to cross-examine
adverse witnesses, and overlooked several other
mandatory reminders and warnings in Rule 11’s
lengthy list. Compliance with Rule 11 is easily
achieved. Both judge and prosecutor can use
check-off forms (which are readily available); it
is surprising and regrettable that the court
continues to see appeals of this kind, where a
district judge, a prosecutor, and defense counsel
all seem oblivious to the risk.

  If Driver had asked the district court for
leave to withdraw his plea, then the judge would
have had to decide whether the noncompliance with
Rule 11 supplied a "fair and just reason" for
that relief. Fed. R. Crim. P. 32(e). Even an
established violation of Rule 11 can be harmless
error, see Rule 11(h), and thus not a "fair and
just reason" to return to Square One. A violation
would be harmless when the defendant already knew
the information omitted by the judge--when, for
example, his own lawyer had told him about cross-
examination, or the written plea agreement had
specified the maximum punishment. See Peguero v.
United States, 526 U.S. 23 (1999); United States
v. Timmreck, 441 U.S. 780 (1979). A judge may
need to hold a hearing to determine what the
defendant knew when he entered the plea of
guilty. But when a defendant does not move to
withdraw the plea in the district court, it will
prove hard, and may be impossible, for appellate
judges to ascertain the state of his knowledge.
If a harmless-error standard nonetheless applies
despite the defendant’s failure to seek relief in
the district court, then many a plea must be set
aside on appeal--for the prosecutor bears the
burden of establishing the harmlessness of an
error. This is Driver’s position. Fortified by
decisions of the ninth circuit, Driver contends
not only that the harmless-error standard governs
but also that a court is forbidden to examine
anything other than the plea colloquy in order to
determine what the defendant knew when pleading
guilty. See United States v. Odedo, 154 F.3d 937,
940 (9th Cir. 1998); United States v. Vonn, 224
F.3d 1152 (9th Cir. 2000), cert. granted, No. 00-
973 (U.S. Feb. 26, 2000). See also United States
v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir.
1995). This approach almost inevitably leads to
reversal with instructions to allow the defendant
to plead again; it would have exactly that effect
if we followed it.

  Which we do not. Like most other appellate
courts that have considered this issue, we have
held that, when the district court was not asked
to set aside the plea, appellate review is for
plain error. See Fed. R. Crim. P. 52(b); United
States v. Akinsola, 105 F.3d 331, 333 (7th Cir.
1997); United States v. Davis, 121 F.3d 335, 338
(7th Cir. 1997); United States v. Cross, 57 F.3d
588, 590 (7th Cir. 1995). Accord, United States
v. Gandia-Maysonet, 227 F.3d 1, 5-6 (1st Cir.
2000); United States v. Bashara, 27 F.3d 1174,
1178-79 (6th Cir. 1994); United States v. Young,
927 F.2d 1060 (8th Cir. 1991); United States v.
Quinones, 97 F.3d 473, 475 (11th Cir. 1996). Cf.
United States v. Glinsey, 209 F.3d 386, 394 n.8
(5th Cir. 2000) (stating that harmless-error
approach applies, but that the defendant
nonetheless bears the burden). Driver contends
that United States v. Fernandez, 205 F.3d 1020,
1028 (7th Cir. 2000), aligns us with the ninth
circuit, but he has misread Fernandez. In that
case the defendant asked the district court to
withdraw his plea and go to trial. We reviewed
for harmless error an order denying that motion.
When the defendant has not asked for relief in
the district court, the more demanding plain-
error standard applies. See United States v.
Olano, 507 U.S. 725 (1993).

  If we were tempted to alter this circuit’s
approach, we would not be attracted to the ninth
circuit’s. It is incompatible with the language
of Rule 52(b), which calls for plain-error review
when a claim of error was "not brought to the
attention of the [district] court". (Rule 11(h)
does not override Rule 52(b), as the ninth
circuit asserts; it simply restates the approach
applicable when a claim of error has been
preserved in the district court, and thus negates
the conclusion of some courts that McCarthy v.
United States, 394 U.S. 459 (1969), had abrogated
plain-error analysis in Rule 11 cases. See
Gandia-Maysonet, 227 F.3d at 5.) Limiting
appellate review to a search for plain error
serves important functions, among them inducing
defendants to present their claims to the
district court so that reversible error may be
avoided. A motion to withdraw a plea entered
after defective procedures enables the district
court to build the sort of record that is
essential to understanding the effect of any
noncompliance with Rule 11; it also permits the
district judge to take the plea anew and thus
avoid the delay that attends appeal--delay that
may undermine the accuracy of any ensuing trial,
for memories may fade or evidence be lost as time
passes. Finally, in a case such as this, a motion
in the district court would dispel uncertainty
about whether the defendant really wants to
withdraw his plea, give up the consideration
received for the plea bargain (including the
reduction for acceptance of responsibility), and
go to trial. If the defendant plans to plead
guilty a second time, reversal would serve no
function; there would not even be a case or
controversy. Only the defendant knows whether he
really prefers a trial, with all the attendant
risks. At oral argument Driver’s lawyer was
unwilling to say that his client actually wants
to go to trial (or even to re-plead). Counsel
proposed this appellate strategy in writing to
his client and, when Driver did not reply to his
letters, he filed the brief making the argument
we have sketched. Failure to reply to one’s mail
may have a high cost indeed for Driver, if this
appeal should lead to the loss of the benefits of
his plea bargain. A motion in the district court
would have avoided all uncertainty about the
defendant’s position.

  Indeed, it is open to question whether even a
search for plain error is justified when the
defendant did not ask the district court for
leave to withdraw his plea, and does not argue
that he first became aware after sentencing of
some right that the district court omitted from
the Rule 11 colloquy. Normally plain-error review
applies when the district court takes a step that
the prosecutor requested, or when the district
judge acts on his own. It is difficult to
conceive of judicial acquiescence in a step that
the defense itself proposed as plain error. If,
for example, defense counsel elicits testimony at
trial, the defendant can’t argue on appeal that
the evidence was hearsay and should have been
excluded. See United States v. Wynn, 845 F.2d
1439, 1443-44 (7th Cir. 1988); United States v.
Carter, 720 F.2d 941, 948 (7th Cir. 1983). When
the court does exactly what the defendant wants,
the defendant has waived rather than simply
forfeited any argument that things should have
been done otherwise. See Olano, 507 U.S. at 732-
34; United States v. Richardson, No. 99-4309 (7th
Cir. Jan. 25, 2001), slip op. 5-6. Driver sought
to change his plea from innocent to guilty. How
can Driver assail, as error, the granting of his
own request? True enough, the district judge may
err in the proceedings leading to the grant, and
errors in the execution of Rule 11 may provide
sound reasons for withdrawing the plea under Rule
32(e). When the defendant seeks to withdraw the
plea and appeals from the denial of this request,
the court of appeals applies harmless-error
analysis to determine whether any errors at the
time the plea was taken justified relief under
Rule 32(e). Until a motion to withdraw the plea
is made, however, the district judge’s bottom
line--the entry of judgment on the plea of
guilty--cannot be characterized as an error of
any kind, making it hard to see why plain-error
review would be appropriate.

  Nonetheless, the United States has not asked us
to replace plain-error analysis with a conclusion
that waiver bars appellate review. Nor would it
be appropriate for us to modify circuit law
spontaneously, when nothing we could do would
ameliorate the conflict among the circuits. In
Vonn the Supreme Court can choose from the full
palette, from harmless-error review on one end to
waiver on the other. For now, we are content to
apply the plain error standard.

 The district judge’s omissions at the change-of-
plea hearing are obvious errors. Still, as the
Court held in Olano, an error, however obvious,
is "plain error" only if the gaffe affected the
"fairness, integrity, or public reputation of
judicial proceedings." 507 U.S. at 736. See also
Johnson v. United States, 520 U.S. 461, 469-70
(1997). Applied to a violation of Rule 11, this
means a demonstration (on which the defendant
bears the burden of persuasion, see Olano, 507
U.S. at 734) not only that the defendant would
not have pleaded guilty in the absence of the
district court’s error, but also some reason to
believe that the defendant should not be
convicted--for a conviction achieved after a
voluntary guilty plea cannot be described as a
miscarriage of justice if the defendant had no
defense and was bound to be convicted anyway. He
does not have to establish actual innocence, see
Olano, 507 U.S. at 736, but still must show that
failure to provide relief would cause a
miscarriage of justice. Id. at 736-37. Driver
does not put any of these requirements to the
test, because his appellate brief does not even
assert that, had he been informed in open court
of the details the district judge overlooked, he
would not have pleaded guilty. Nor does he assert
that he has any plausible defense that he could
advance at trial. Both in a written plea
agreement and on his feet in court, Driver avowed
that he was pleading guilty because he is guilty.
This was not an Alford plea.

  What is more, the record goes a good way toward
demonstrating that Driver knew most if not all of
what the district judge forgot to mention. Much
of the information is in the written plea
agreement. Some items also turned out to be
irrelevant. For example, the judge did not
mention the maximum possible sentence, but the
plea agreement and "petition to enter a plea of
guilty" (which includes the agreed terms)
mentioned punishment that exceeded Driver’s
actual sentence of 160 months. The "petition"
recites that the maximum prison term for using
facilities of commerce to carry out murder for
hire is ten years, and that the minimum term for
using a firearm in that offense is five years,
which must run consecutively. That’s 180 months,
and since Driver knew that five years was a
mandatory minimum, he had to anticipate the
possibility of a sentence longer than 180 months.
True enough, some of the omissions in the Rule 11
proceedings were not supplied by the plea
agreement. The agreement did not, for example,
mention the right to engage in cross-examination
if a trial should be held. But neither does
Driver now contend that he was ignorant of this
right, which his lawyer in the district court
must have mentioned when discussing whether the
plea bargain was a good deal compared with the
prospects at trial. Almost everyone knows about
cross-examination from crime shows on television;
it would be a rare defendant who could make a
plausible claim that the district court’s
omission left him ignorant of this entitlement.
Driver’s appellate lawyer does not advance so
bold a contention.

  Because Driver does not say either that he was
actually ignorant of the points omitted from the
colloquy or that he would not have pleaded guilty
had the colloquy been conducted properly, he
cannot establish plain error. Driver’s cause
would have been better served by an Anders brief--
for the Anders procedure would have avoided any
risk that, against all odds, we would have
reversed, and so caused Driver to lose the
benefit of his bargain.

Affirmed


 RIPPLE, Circuit Judge, concurring. It is well-
settled in this circuit that plain error analysis
ought to be employed in a situation like the one
that confronts us today. The panel opinion amply
demonstrates that, under that analysis, the
judgment of the district court ought to be
affirmed. I agree with that determination for
substantially the same reasons as my colleagues.
However, I respectfully decline to express any
opinion on the alternate waiver analysis set
forth in the panel opinion. This discussion is
dicta and entirely unnecessary to the decision in
this case.
