                                                            [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               APR 06 2000
                                                            THOMAS K. KAHN
                                                                 CLERK
                                No. 98-3192

                  D. C. Docket No. 98-00042-CR-ORL-18A


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

JOSE ALFREDO HERNANDEZ-FRAIRE,

                                                      Defendant-Appellant.




                 Appeal from the United States District Court
                     for the Middle District of Florida

                               (April 6, 2000)


Before DUBINA and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.

DUBINA, Circuit Judge:
       Appellant Jose A. Hernandez-Fraire (“Hernandez-Fraire”) appeals his

judgment of conviction entered following his guilty plea to one count of being

unlawfully in the United States after having been previously deported, in violation

of 8 U.S.C. § 1326. Hernandez-Fraire contends that his plea was not made

knowingly and intelligently because the district court failed to inform him of his

right to plead not guilty, his right to the assistance of counsel at trial, his right to

confront and cross-examine adverse witnesses at trial, and his right against

compelled self-incrimination. After reviewing the record, reading the parties’

briefs, and having the benefit of oral argument, we conclude that the district court

committed plain error when it failed to inform Hernandez-Fraire of the

aforementioned rights as required by Federal Rule of Criminal Procedure 11(c)(3)

(“Rule 11”). Accordingly, we vacate Hernandez-Fraire’s sentence and remand this

case to the district court for further proceedings consistent with this opinion.

                                     I. Background

       The United States deported Hernandez-Fraire on October 8, 1996, following

his conviction for burglary. Subsequently, Hernandez-Fraire returned to the

United States, and federal authorities arrested him for illegal re-entry into the

United States, in violation of 8 U.S.C. § 1326.




                                             2
      On April 28, 1998, Hernandez-Fraire pled guilty to illegal re-entry into the

United States. As required by Rule 11, the district court addressed Hernandez-

Fraire in open court. The following colloquy took place:

      THE COURT:                   All right sir. You are charged in count one of
                                   the indictment that on or about the 15th of
                                   December, 1997, in Osceola County that you
                                   had previously been arrested and deported
                                   from the United States without obtaining
                                   consent from the Attorney General. Do you
                                   understand what you’re being charged with?
      THE DEFENDANT:               Yes.
      THE COURT:                   And has your attorney explained to you to
                                   your satisfaction every element of the offense
                                   charged in the indictment?
      THE DEFENDANT:               Yes.
      THE COURT:                   And where were you deported to in 1996?
      MS. MILLS:1                  To Mexico, Your Honor.
      THE COURT:                   And that is where you are a permanent
                                   resident, Mexico?
      THE DEFENDANT:               Well, I came here when I was 14 years old
                                   and I don’t know nobody in Mexico City. I
                                   don’t have no family in Mexico City. All my
                                   family is in California.
      THE COURT:                   Do you have any American residency such as
                                   a green card or passport or anything like that?
      THE DEFENDANT:               All my family does.
      THE COURT:                   You. Do you?
      THE DEFENDANT:               No. I applied for one for the amnesty and
                                   they say that Washington was going to make
                                   their decision, something that happened about
                                   my papers, they say that I didn’t send them to
                                   them.

      1
       Ms. Mills was Hernandez-Fraire’s trial counsel.

                                             3
THE COURT:                   All right. Do you understand that by entering
                             a plea of guilty to this count that you’re giving
                             up your right to a jury trial?
THE DEFENDANT:               I understand that.
THE COURT:                   Now, under the statute, under the statute,
                             which is 8 United States Code § 1326, you
                             could get up to 20 years imprisonment, a fine
                             of $25,000, supervised release term of up to
                             three years and a special assessment of $100.
                             Has your attorney explained to you the federal
                             guidelines for sentencing?
THE DEFENDANT:               Yes.
THE COURT:                   Under the guidelines you could have an
                             estimated offense level of 24. What would be
                             the criminal history category?
MR. WHERRY:2                 Criminal history category we would say three,
                             five points for criminal history points, is that
                             what you’re speaking of, Judge?
THE COURT:                   Yes.
MR. WHERRY:                  Offense level would be 11.
THE COURT:                   No. I just want to know what his criminal
                             history category would be?
MR. WHERRY:                  I estimate it to be a three.
MS. MILLS:                   Your Honor, three to four.
THE COURT:                   All right. Three. All right, sir. You would
                             have an estimated offense level of 24 with a
                             criminal history category of from three to four
                             which would give you an exposure of from 63
                             to 96 months in prison, but by entering this
                             plea of guilty and taking responsibility for
                             your actions, you would be entitled to a three
                             level reduction which would give you an
                             exposure of from 46 to 71 months, do you
                             understand that?
THE DEFENDANT:               Yes.

2
 Mr. Wherry was the trial prosecutor.

                                        4
THE COURT:       Has anybody threatened you in any way to get
                 you to enter into this plea?
THE DEFENDANT:   I really don’t know about this plea because I
                 don’t know what my rights are.
MS. MILLS:       Well, your Honor, I think I can speak for Mr.
                 Fraire. He is entering a plea of guilty because
                 he came into the country, he knows what the
                 elements of the offense are, that he had been
                 deported. I think that Mr. Fraire has some
                 questions about an appeal that he had filed
                 that he dismissed that he never got to appeal
                 and I explained that to him and he understands
                 that he was legally deported from the country
                 and came back without permission and that’s
                 what he’s pleading today. And I know he has
                 some confusion about the other conviction
                 that he had.
THE COURT:       Did anybody make any promises to you
                 regarding the sentence in this case?
THE DEFENDANT:   No.
THE COURT:       Has anybody made any threats to you?
THE DEFENDANT:   No.
THE COURT:       During the time that you have been detained,
                 have you been under any doctor’s care or
                 taken any prescriptions that you think might
                 affect your ability to understand what is
                 happening here this morning?
THE DEFENDANT:   No.
THE COURT:       Are you entering a plea of guilty to entering
                 the United States illegally after having been
                 deported because you are guilty or for some
                 other reason?
THE DEFENDANT:   I didn’t understand the question.
THE COURT:       All right. You are charged with entering the
                 United States illegally after having been
                 deported. Are you entering that plea because



                          5
                  you are guilty or are you entering the plea for
                  some other reason?
THE DEFENDANT: Well, I just, I have to eat, you know, and I
                  didn’t, I’m homeless in Mexico and -
(DISCUSSION OFF THE RECORD).
THE DEFENDANT.    According to the papers, that’s what they say.
THE COURT:        All right. Would you tell me exactly what
                  you did? You had been previously arrested
                  and deported in October of ‘96. What did you
                  do after that?
THE DEFENDANT: After being deported?
THE COURT:        Yes.
THE DEFENDANT: I came back.
THE COURT:        How did you come back?
THE DEFENDANT: Just come back inside the country.
THE COURT:        Did you go through customs?
THE DEFENDANT: No.
THE COURT:        Did you cross the border illegally?
THE DEFENDANT: Yes.
THE COURT:        All right. Miss Mills, anything you’d like to
                  add?
MS. MILLS:        No, Your Honor.
THE COURT:        Mr. Wherry.
MR. WHERRY:       Do you want a statement from the government
                  at this time?
THE COURT:        Yes. Because there’s no agreement, would
                  you please state what the government could
                  prove it if went to trial?
MR. WHERRY:       Yes, sir. If the government were to go to trial
                  in this particular matter, we would develop the
                  criminal history of this individual of having
                  been deported from the United States on
                  October 8, 1996 following his conviction for
                  burglary of a dwelling in Brevard county on
                  3-25-95 and having been sentenced there for
                  30 months. Following his deportation on
                  October 8, 1996 in Miami, Florida, he was

                               6
                                   sent back to Mexico. At the time of
                                   deportation, his fingerprint was taken and he
                                   was explained that if he came back into the
                                   United States he would first have to have
                                   permission of the Attorney General, otherwise
                                   he’d be in violation of the law.

                                   The record of Immigration and Naturalization
                                   Service would indicate that there was never an
                                   application filed by the defendant for reentry
                                   in the United States and the individual’s
                                   identity was identified by Immigration and
                                   Naturalization Service by a fingerprint
                                   identification, his criminal history record as
                                   well as his prior deportation record [show]
                                   that this individual is the same individual
                                   before the court today and that he reentered
                                   the United States illegally and he’s an illegal
                                   alien in the United States subject to
                                   deportation.
       THE COURT:                  Would you feel it’s just easier to be a criminal
                                   in this country rather than being a criminal in
                                   Mexico?
                                                   ***
       THE COURT:                  All right, sir. The court will accept your plea
                                   of guilty to illegally entering the United States
                                   after being deported. I’ll order a presentence
                                   report and set sentencing for August 19 at
                                   nine o’clock.
       MS. MILLS:                  Thank you, Your Honor.

(R2-3-11)

       In this colloquy, the district court did not explicitly inform Hernandez-Fraire

of his right to plead not guilty, his right to the assistance of counsel at trial, his



                                             7
right to confront and cross-examine adverse witnesses at trial, and his right against

compelled self-incrimination. The district court sentenced Hernandez-Fraire to 87

months imprisonment, to be followed by a three-year term of supervised release.

Hernandez-Fraire then perfected this appeal.

                               II. Standard of Review

      Because Hernandez-Fraire did not present the Rule 11 violations to the

district court, this court will review the district court’s holding for plain error. See

United States v. Wiggins, 131 F.3d 1440, 1441-42 (11th Cir. 1997); United States

v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). Plain error is error that is clear or

obvious and affects substantial rights. See Wiggins, 131 F.3d at 1442 n.1;

Quinones, 97 F.3d at 475. On plain error review, the defendant bears the burden of

persuasion with respect to prejudice. See Wiggins, 131 F.3d at 1442 n.1;

Quinones, 97 F.3d at 475. A district court’s failure to address a core concern of

Rule 11 constitutes plain error. See Quiones, 97 F.3d at 475.

                                    III. Discussion

      Rule 11 imposes upon a district court the obligation and responsibility to

conduct an inquiry into whether the defendant makes a knowing and voluntary

guilty plea. See Wiggins, 131 F.3d at 1442. When accepting a guilty plea, a court

must address three core concerns underlying Rule 11: “(1) the guilty plea must be


                                           8
free from coercion; (2) the defendant must understand the nature of the charges;

and (3) the defendant must know and understand the consequences of his guilty

plea.” United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998) (quoting

United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996)). “A court’s failure to

address any one of these three core concerns requires automatic reversal.” Siegel,

102 F.3d at 481 (quoting United States v. Bell, 776 F.2d 965, 968 (11th Cir.

1985)). Rule 11, however, does not say that a court’s only means of compliance is

to read the specified items in haec verba. See Fed. R. Crim P. 11(h), Advisory

Committee’s Notes. Instead, any variances or deviations from the procedures

mandated by Rule 11 that do not affect a defendant’s substantial rights constitute

harmless error. See Fed R. Crim. P. 11(h) (“any variance from the procedures

required by this rule which does not affect substantial rights shall be disregarded”);

Siegel 102 F.3d at 481. Generally, this circuit will uphold a plea colloquy that

technically violates Rule 11, but adequately addresses the three core concerns. See

Jones, 143 F.3d at 1420 (“A defendant ‘is entitled to replead only if the district

court’s variance from the formal requirements of Rule 11 impinged upon the very

rights they were designed to protect.’”) (quoting United States v. Zickert, 955 F.2d

665, 667-68 (11th Cir. 1992)).




                                          9
      In this appeal, Hernandez-Fraire contends that by failing to mention all of

the rights listed in Rule 11(c)(3), the district court did not address the third core

concern of Rule 11 – that the defendant must know and understand the

consequences of his guilty plea. Rule 11(c) provides:

      (c) Advice to Defendant. 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:
                                           ***
            (3) that the defendant has the right to plead not guilty or to persist
            in that plea if it has already been made, the right to be tried by a
            jury and at that trial the right to the assistance of counsel, the right
            to confront and cross-examine adverse witnesses, and the right
            against compelled self-incrimination . . .

      In the present case, the district court violated Rule 11(c)(3) by not explicitly

informing Hernandez-Fraire of his right to plead not guilty, his right to the

assistance of counsel at trial, his right to confront and cross-examine adverse

witnesses at trial, and his right against compelled self-incrimination.

      The government acknowledges that the district court failed to ask all the

questions contemplated by Rule 11(c)(3), but argues that the district court

nonetheless addressed the core concerns underlying Rule 11. In particular, the

government notes that the district court informed Hernandez-Fraire of the possible

penalties he would face, and that, by pleading guilty, he waived his right to a jury

trial. The government asserts that the additional rights the district court omitted –

                                           10
the right to the assistance of counsel, the right to confront and cross-examine

witnesses, and the right against compelled self-incrimination – are all inherent in

the right to a jury trial. Moreover, the government posits that Hernandez-Fraire’s

extensive criminal history has familiarized him with the criminal justice system

and the rights inherent in the right to a jury trial. See United States v. Mosley, 173

F.3d 1318, 1322 (11th Cir. 1999) (examining a defendant’s life experiences in

determining whether the defendant understood the nature of the charges).

       As the government concedes in its brief, however, this court has rejected

these arguments in two other factually similar cases. See United States v. Ortiz,

No. 98-3698 (11th Cir. Nov. 23, 1999) (unpublished); United States v. Leija-

Vasquez, No. 99-2367 (11th Cir. Aug. 13, 1999) (unpublished).3 Although these

cases are not binding on this court, they are persuasive authority.4 Both Ortiz and

Leija-Vasquez involve appeals from similar plea colloquies before the same district

judge5 who presided in the present case. In Ortiz and Leija-Vasquez, as in this

case, the court advised the defendant of his right to a jury trial, but failed to


       3
        We appreciate the candor of the government in calling to our attention the unpublished
opinions in Ortiz and Leija-Vasquez.
       4
        Eleventh Circuit Rule 36-2 states that “[u]npublished opinions are not considered
binding precedent. They may be cited as persuasive authority . . . .”
       5
        The government points out that the plea colloquy used in this instant case and in Ortiz
and Leija-Vasquez appears to be the standard plea colloquy used by this district judge.

                                               11
mention that at trial the defendant has the right to the assistance of counsel, the

right to confront and cross-examine adverse witnesses, and the right against

compelled self-incrimination. Furthermore, as in Ortiz and Leija-Vasquez, nothing

in the record in this case indicates that the defendant knew he had these additional

rights. Cf. United States v. Caston, 615 F.2d 1111, 1113-16 (5th Cir. 1980)

(upholding a guilty plea, even though the district court did not explicitly mention

that the defendant had the right to a jury, the right to the assistance of counsel at

trial, and the right against compelled self-incrimination, because the record

indicated that the defendant understood the consequences of his guilty plea

including his waiver of certain constitutional rights).

      As in Ortiz and Leija-Vasquez, we hold that where the district court fails to

inform the defendant of his Rule 11(c)(3) rights and nothing in the record indicates

that the defendant is aware of these rights, the government cannot rely on the

defendant’s past criminal background to prove that he knows and understands

these rights. We will not infer to a defendant knowledge of his Rule 11

constitutional rights based solely on his past criminal history. To do so would

eviscerate the third core concern of Rule 11. See Jones, 143 F.3d at 1419 (“If . . .

an appellate court cannot be sure that the defendant was aware of any information




                                           12
required by Rule 11 to be discussed at the plea colloquy, the defendant should be

permitted to withdraw his plea.”).

      In fact, an examination of the plea colloquy in this case reveals that

Hernandez-Fraire did not understand his rights. Specifically, the court asked the

question: “Has anybody threatened you in any way to get you to enter into this

plea?” Hernandez-Fraire answered: “I really don’t know about this plea, because I

don’t know what my rights are.” (R2-6) (emphasis added). After this response, the

district court should have ensured Hernandez-Fraire was aware of his rights.

      In sum, we conclude that Hernandez-Fraire did not know and understand the

consequences of his guilty plea. The district court failed to determine that

Hernandez-Fraire understood that by entering a plea of guilty, he waived his right

to the assistance of counsel at trial, the right to confront and cross-examine adverse

witnesses at trial, and the right against self-incrimination as required by Rule

11(c)(3). The district court also failed to inform Hernandez-Fraire that he had the

right to persist in a plea of not guilty as required by Rule 11(c)(3). Nothing in the

record indicates that Hernandez-Fraire understood these rights. The district court’s

failures to inform strike at the heart of what Rule 11 was designed to prevent – the

unknowing and unintelligent waiver of constitutional rights. Therefore, we hold




                                          13
that the district court committed plain error by failing to address a core concern of

Rule 11.

                                  IV. Conclusion

      For the sake of judicial economy and fundamental fairness, the best way for

district courts to address the core concerns underlying Rule 11 is to explicitly

follow Rule 11. While this procedure is wise but not mandatory, we hold in this

case that the district court committed plain error in failing to inform Hernandez-

Fraire of his rights as required by Rule 11(c)(3). Therefore, we vacate Hernandez-

Fraire’s sentence and remand this case with instructions that the district court

permit Hernandez-Fraire to withdraw his guilty plea.

      VACATED AND REMANDED.




                                          14
