                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3909
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

JONATHAN BRADLEY,
                                              Defendant-Appellant.

                          ____________
         Appeal from the United States District Court for the
         Northern District of Indiana, South Bend Division.
                No. 02 CR 137—Allen Sharp, Judge.
                          ____________
      ARGUED APRIL 16, 2004—DECIDED AUGUST 25, 2004
                          ____________




  Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit
Judges.
  RIPPLE, Circuit Judge. Jonathan Bradley was indicted for
one count of possession of over five grams of cocaine base
with intent to distribute in violation of 21 U.S.C. § 841(a)(1),
and one count of use and carrying of a firearm during and
in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c). Mr. Bradley pleaded guilty to both offenses
but later moved to withdraw the pleas. The district court
2                                                  No. 03-3909

denied the motion to withdraw the pleas, and Mr. Bradley
timely appealed. For the reasons set forth in this opinion, we
vacate the judgment of the district court and remand the
case for proceedings consistent with this opinion.


                               I
                      BACKGROUND
  On December 11, 2002, a South Bend Police Detective
observed Jonathan Bradley driving a vehicle. The car was
playing loud music, and the detective directed a uniformed
officer to pull over the vehicle. During the stop, a drug-
sniffing dog alerted to the presence of drugs after being
walked around the car. Upon searching, police discovered
a small quantity of a substance alleged to be marijuana as
well as a semiautomatic pistol. Mr. Bradley was given a cita-
tion for violation of the city’s noise ordinance, was arrested
and was taken to the police station. At the station, Mr.
Bradley consented to a search of his home. At Mr. Bradley’s
home, officers found nearly two hundred grams of powder
and crack cocaine as well as a digital scale and other drug
paraphernalia.
  A grand jury indicted Mr. Bradley on two counts. The first
count charged Mr. Bradley with possession of five grams or
more of cocaine base with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1). The second count charged Mr.
Bradley with knowing use and carrying of a firearm “during
and in relation to [a] drug trafficking crime, to wit: the
knowing and intentional possession of a mixture or sub-
stance containing a detectible amount of cocaine base with
intent to deliver,” in violation of 18 U.S.C. § 924(c). R.1 at 2.
No. 03-3909                                                   3

  Mr. Bradley negotiated a plea agreement with the Govern-
ment in which he agreed to plead guilty to both counts of
the indictment. The plea agreement contained the following
factual statement in relation to the 18 U.S.C. § 924(c) firearm
offense:
    On December 11, 2002, I . . . was driving a motor vehicle
    and possessed a quantity of narcotics (marijuana) as
    well as a firearm. That firearm was a Springfield Ar-
    mory Model 1911-A1, .45 caliber pistol, serial number
    N396731. I carried the firearm during and in relation to my
    knowing possession of the marijuana in the vehicle with me.
R.11 at 3 (emphasis added). At the hearing on his change of
plea, the Government made the following statement with
respect to the nature of the § 924(c) offense and the nature
of the evidence relating to that offense:
      With respect to count 2, the firearms count, the gov-
    ernment would have to prove two elements beyond a
    reasonable doubt: First, that the defendant committed a
    drug possession crime. Second, that the defendant
    knowingly possessed a firearm in furtherance of that
    crime; that he used or carried a firearm in furtherance of
    the crime.
      With respect to the evidence . . . .
       On the same day he was stopped while driving a
    motor vehicle, and he had a quantity of narcotics,
    marijuana, as well as a firearm. The firearm is described
    in the indictment. It’s a .45 caliber pistol, and he carried
    the firearm during and in relation to his knowing possession
    of the marijuana in the vehicle with him.
Change of Plea Tr. at 6-7 (emphasis added). Mr. Bradley
admitted the accuracy of these statements. No one addressed
the change in the predicate offense from “possession of . . .
cocaine base with intent to deliver,” as charged in the
4                                                 No. 03-3909

indictment, R.1 at 2, to “possession of the marijuana in the
vehicle,” as admitted in the plea agreement and at the change-
of-plea hearing, R.11 at 3; Change of Plea Tr. at 7.
  In addition to the grounds established for the § 924(c)
offense, a factual basis for the § 841(a)(1) offense was also
established and admitted. The district court thereafter found
that Mr. Bradley voluntarily and intelligently entered a plea of
guilty to both counts, and the court accepted and entered
those pleas.
  Prior to sentencing, Mr. Bradley substituted his defense
counsel and moved to withdraw the guilty pleas. Mr. Bradley
advanced several grounds for withdrawal, among them, an
argument that his plea was not knowing and voluntary
because of misrepresentation or mistake as to criminal
culpability on the § 924(c) offense and the void or voidable
nature of the plea agreement based on this misrepresenta-
tion or mistake. The Government opposed Mr. Bradley’s
motion to withdraw the pleas. With regard to the § 924(c)
conviction, it argued that Mr. Bradley admitted to carrying
the firearm in relation to the marijuana possession; it did
not address the change in the predicate drug trafficking of-
fense from the cocaine possession charged in the indictment
to the simple marijuana possession relied upon in the plea
agreement and at the change-of-plea hearing.
  The district court denied the motion to withdraw the
pleas. It found that Mr. Bradley’s statements at the change-
of-plea hearing established a factual basis for the § 924(c) of-
fense and found Mr. Bradley’s other claims without merit.
The court did not address the difference between the
indictment and the plea agreement as to the predicate drug
trafficking crime for the § 924(c) offense. The court later
sentenced Mr. Bradley. He now appeals the district court’s
denial of his motion to withdraw the pleas. The Government
No. 03-3909                                                     5

concedes error in originally opposing Mr. Bradley’s motion
to withdraw the pleas.


                               II
                        DISCUSSION
  We review the district court’s denial of a motion to with-
draw a guilty plea for an abuse of discretion. See United
States v. Silva, 122 F.3d 412, 414-15 (7th Cir. 1997). After a
guilty plea is accepted, a defendant may withdraw it upon
the showing of a “fair and just reason for requesting the with-
drawal.” Fed. R. Crim. P. 11(d)(2)(B); see also United States v.
Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). In reviewing the
decision of the district court, factual findings as to whether the
defendant has presented a “fair and just reason” are upheld
unless clearly erroneous. See Bennett, 332 F.3d at 1099.
   As we have recited in the past, there is no absolute right
to withdraw a guilty plea, see United States v. Abdul, 75 F.3d
327, 329 (7th Cir. 1996), and a defendant seeking to do so
faces an “uphill battle” after a thorough Rule 11 colloquy,
Bennett, 332 F.3d at 1099. Although the Government’s con-
cession makes Mr. Bradley’s burden somewhat easier to
bear, this court has an independent obligation to ensure that
guilty pleas are not “lightly discarded” because of the
“ ‘presumption of verity’ ” accorded the defendant’s admis-
sions in a Rule 11 colloquy. Silva, 122 F.3d at 415 (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v.
Groll, 992 F.2d 755, 758 (7th Cir. 1993)). Nonetheless, we
accept the Government’s confession of error as to its posi-
tion in the district court proceedings, and we agree with the
parties that the district court abused its discretion in
denying Mr. Bradley permission to withdraw his pleas.
6                                                     No. 03-3909

  Mr. Bradley contends that his guilty plea violated due
                                                        1
process because it was not knowing and voluntary. It is
fundamental that “a plea of guilty must be intelligent and
voluntary to be valid.” Brady v. United States, 397 U.S. 742,
747 n.4 (1970). Moreover, a plea is not voluntary “in the
sense that it constituted an intelligent admission that he
committed the offense unless the defendant received ‘real
notice of the true nature of the charge against him, the first
and most universally recognized requirement of due pro-
cess.’ ” Henderson v. Morgan, 426 U.S. 637, 645 (1976) (quot-
ing Smith v. O’Grady, 312 U.S. 329, 334 (1941)). To this end,
Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure
requires that a defendant adequately be informed of and un-


1
  In his brief to this court, Mr. Bradley propounded a number of
arguments as to why the pleas should be withdrawn, including
among them the claim that, “because Defendant Bradley pled
without sufficient knowledge of what he was criminally culpable
for, his Due Process Rights were violated.” Appellant’s Br. at 22.
Mr. Bradley also brought to our attention the fact that the
marijuana possession was substituted as the predicate offense to
the weapons charge: “In the indictment, Count II . . . charged
Defendant Bradley with using the gun in relation to his posses-
sion with intent to distribute the cocaine found at his apartment.
The plea agreement, however, calls the possession of the mari-
juana the predicate drug trafficking offense.” Id. at 15. Mr.
Bradley presented the issue in similar fashion to the district court
in his motion to withdraw the pleas. See R.24 at 8, 13. On appeal,
the Government admitted fundamental error in this switch of
predicate offenses and characterized the issue as a constructive
amendment of the indictment. We do not rely upon the Govern-
ment’s characterization, but we construe the parties’ submissions
as sufficiently raising the issue of whether Mr. Bradley knowingly
entered his plea.
No. 03-3909                                                  7

derstand “the nature of each charge to which the defendant
is pleading.”
  To determine whether the defendant fully understood the
nature of the charge to which he admitted guilt, we employ
a totality of the circumstances approach. See United States v.
Fernandez, 205 F.3d 1020, 1025 (7th Cir. 2000). We have
noted multiple factors for consideration, among them the
complexity of the charge, the evidence proffered by the
Government, the judge’s inquiry during the plea hearing
and the defendant’s statement. See id. (noting the additional
factors of a defendant’s level of intelligence, age and edu-
cation and whether the defendant was represented). Exam-
ining the totality of the circumstances here, we cannot say
Mr. Bradley fully understood the nature of the charge to
which he admitted guilt.
  We consider first the complexity of the charge, which is
effectively a decisive factor under these circumstances. Mr.
Bradley was indicted for possession of a firearm during and in
relation to a “drug trafficking crime, to wit: the knowing
and intentional possession . . . of cocaine base with intent to
deliver.” R.1 at 2. As such, possession of the cocaine base
with intent to distribute became an essential element of the
§ 924(c) offense charged against him, and the Government
must connect that predicate offense with the firearm pos-
session. See United States v. Willoughby, 27 F.3d 263, 266 (7th
Cir. 1994) (“ ‘To wit’ is an expression of limitation which, as
our cases indicate, makes what follows an essential part of
the charged offense.”). It is clear that Mr. Bradley was
misinformed during the change-of-plea hearing as to what
conduct would suffice to establish the § 924(c) offense with
which he was charged.
  In considering the court’s inquiry, Mr. Bradley’s admis-
sions and the Government’s evidence, the circumstances
8                                                       No. 03-3909

reveal general confusion and misunderstanding as to the
nature of the § 924(c) charge against Mr. Bradley. When de-
scribing the elements of the § 924(c) offense at the change-
of-plea hearing, the Government’s attorney suggested that
it need establish only that Mr. Bradley committed a “drug
possession crime” and that it must prove the firearm was
possessed in furtherance of that crime. Change of Plea Tr. at
7. However, this statement was inaccurate, given that, to
prove a § 924(c) violation, the Government actually must es-
tablish a “drug trafficking crime,” as defined in § 924(c)(2), and
the specific drug trafficking crime described in the indict-
                                                      2
ment when one is so cited. See 18 U.S.C. § 924(c); Willough-
by, 27 F.3d at 266. At no time during the change-of-plea


2
    In relevant part, 18 U.S.C. § 924(c) provides:
      (c)(1)(A) Except to the extent that a greater minimum sen-
      tence is otherwise provided by this subsection or by any other
      provision of law, any person who, during and in relation to
      any crime of violence or drug trafficking crime (including a
      crime of violence or drug trafficking crime that provides for
      an enhanced punishment if committed by the use of a deadly
      or dangerous weapon or device) for which the person may
      be prosecuted in a court of the United States, uses or carries
      a firearm, or who, in furtherance of any such crime, pos-
      sesses a firearm, shall, in addition to the punishment pro-
      vided for such crime of violence or drug trafficking crime—
      (i) be sentenced to a term of imprisonment of not less than 5
      years;
      ...
      (2) For purposes of this subsection, the term “drug trafficking
      crime” means any felony punishable under the Controlled
      Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances
      Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime
      Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).
No. 03-3909                                                     9

hearing was the offense of possession of cocaine base with
intent to distribute discussed in relation to the firearm
possession. Moreover, no one discussed the change in the
predicate drug trafficking crime from the cocaine base
offense charged in the indictment to the marijuana offense
relied upon in the plea colloquy. As crowning evidence of the
confusion, the facts to which Mr. Bradley admitted, both in
the plea agreement and at the Rule 11 colloquy, did not
establish the § 924(c) offense with which he was charged.
  When there is no evidence that the requisite elements of
the charged offense were comprehended by any party to the
proceeding, confidence in the defendant’s understanding of
                                      3
that charge certainly is undermined. As we previously have
explained, “[u]nless the defendant understands the elements
of the crime he is admitting, his plea cannot be said to have
been knowingly and voluntarily entered.” United States v.
LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994); see also United
States v. Musa, 946 F.2d 1297, 1303 (7th Cir. 1991) (describing
as a violation of due process a court’s acceptance of a plea
to which the elements of the crime charged are not under-
stood (citing McCarthy v. United States, 394 U.S. 459, 466
(1969))).
  “[A] defendant’s clear understanding of the nature of the
charge to which he is pleading guilty relates to the very


3
  The affirmative misstatements pertaining to the predicate drug
trafficking crime for the 18 U.S.C. § 924(c) offense would confuse
any defendant. Therefore, we need not address factors suggestive
of a defendant’s subjective understanding, such as education level
or representation status. Cf. United States v. Fernandez, 205 F.3d
1020, 1026 (7th Cir. 2000) (considering a defendant’s education,
language skills and experience with the criminal system as
indicative of whether the defendant would understand the legal
term “conspiracy” without further explanation).
10                                                  No. 03-3909

heart of the protections afforded by the Constitution and
Rule 11.” Fernandez, 205 F.3d at 1027. Misunderstanding of
the nature of the charge—shared by all participants in this
change-of-plea hearing—is not harmless error. See id. In-
deed, the Government does not attempt to defend the validity
of the plea in light of this misunderstanding. Given this fun-
damental misapprehension, Mr. Bradley’s guilty plea was
                                         4
not made knowingly and intelligently.
  In reaching this conclusion, we note the Supreme Court’s
opinion in Bousley v. United States, 523 U.S. 614 (1998). In
Bousley, the petitioner sought a writ of habeas corpus, ar-
guing, in part, that his guilty plea was involuntary because
he was misinformed as to the elements of a § 924(c) offense.
See id. at 618. The Court stated: “[P]etitioner contends that
the record reveals that neither he, nor his counsel, nor the
court correctly understood the essential elements of the crime
with which he was charged. Were this contention proved,
petitioner’s plea would be . . . constitutionally invalid.” Id.
at 618-19. The Court further noted that “[t]his type of claim

4
  We emphasize that this case does not present a mere Rule 11
violation. The record reveals a far more fundamental misunder-
standing about the nature of the charged offense. The grand jury
charged cocaine possession, not marijuana possession, as the
predicate basis of the § 924(c) offense, and neither the Govern-
ment nor the district court addressed—or recognized—this
change in the predicate offense. There is no evidence that Mr.
Bradley knowingly agreed to such a change. Rather, the record
reveals starkly that Mr. Bradley was misinformed as to the nature
of the charge. Such circumstances present a due process violation.
See Fernandez, 205 F.3d at 1024 (“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.”).
No. 03-3909                                                    11

can be fully and completely addressed on direct review based
on the record created at the plea colloquy.” Id. at 622. Our
review of the record of the plea colloquy leads to the con-
clusion that no one understood an essential element of the
crime with which Mr. Bradley was charged, namely, the
specific drug trafficking predicate offense. Consequently,
Mr. Bradley has shown a “fair and just reason” for with-
                                           5
drawal of his plea to the § 924(c) offense.


5
  We note that, under 21 U.S.C. § 844, simple marijuana posses-
sion, without more, does not rise to the level of a felony, and
therefore does not establish a “drug trafficking crime.” Simple
possession is felonious only if the defendant “commits such
offense after a prior conviction under this subchapter or
subchapter II of this chapter, or a prior conviction for any drug,
narcotic, or chemical, offense chargeable under the law of any
State.” Id. Thus, without a prior controlled substance conviction,
an admission of simple marijuana possession would not provide
sufficient factual support for a § 924(c) plea.
  When Mr. Bradley’s plea was accepted, there was no evidence
of a prior controlled substance conviction under federal or state
law. Nor does the record indicate any discussion, throughout the
district court proceedings, as to the relevance of a prior drug
offense conviction to the § 924(c) offense. However, Mr. Bradley’s
presentence report did reveal a prior conviction under Indiana
law for a narcotics offense, and the presentence report was
incorporated into the district court’s sentencing memorandum
and order.
  Because we have concluded that Mr. Bradley’s plea was not
made intelligently, we need not and do not inquire into the
sufficiency of the marijuana possession, under the circumstances
described above, as a basis for a § 924(c) offense. Therefore, we
need not address whether the prior conviction properly is
considered a sentencing factor or an element of the predicate
                                                    (continued...)
12                                                     No. 03-3909

   Moreover, Mr. Bradley entered into the plea agreement as
a whole, pleading guilty to both counts in exchange for
certain promises from the Government. For this reason,
Mr. Bradley argues, and the Government concedes, that
the defect inherent in the 18 U.S.C. § 924(c) plea taints the
guilty plea to the 21 U.S.C. § 841(a)(1) offense as well. We
reach the same conclusion. Ordinary contract principles
govern plea agreements. See United States v. Barnes, 83 F.3d
934, 938 (7th Cir. 1996). Thus, “[w]hen the government pro-
poses a plea agreement, when the defendant accepts it and
when the district court enforces it, there must be a meeting
of minds on all of its essential terms.” Id. Among the essen-
tial terms is the “nature of the charge to which the defendant
pleads.” Id.
  We noted in Barnes that, “[a]t least in theory, ambiguity in
an essential term or a mutual mistake about the meaning of
such a term can invalidate” the plea agreement. Id. Here is
such a case. Both parties were mistaken as to the nature of
the § 924(c) charge against Mr. Bradley. Given the parties’
mutual mistake as to an essential element of the plea
agreement, the entire agreement is invalidated. See id. at 941
(“If we rule that some provision of the plea agreement is
invalid, we must discard the entire agreement and require
[the defendant] and the government to begin their bargain-
ing all over again.”); cf. United States v. Peterson, 268 F.3d
533, 534 (7th Cir. 2001) (noting that “[t]he whole plea
agreement stands, or the whole thing falls,” in response to
a defendant’s argument regarding the validity of a restitu-
tion order imposed pursuant to a plea agreement). Thus, Mr.



5
  (...continued)
drug trafficking offense. See Almendarez-Torres v. United States, 523
U.S. 224, 228 (1998).
No. 03-3909                                               13

Bradley is entitled to withdraw his plea to the § 841(a)(1)
offense as well as to the § 924(c) offense.


                       Conclusion
  For the foregoing reasons, the judgment of the district
court is vacated and the case is remanded for proceedings
consistent with this opinion.
                                  VACATED and REMANDED

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-25-04
