           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    United States v. Rose                       No. 02-5163
        ELECTRONIC CITATION: 2004 FED App. 0045P (6th Cir.)
                    File Name: 04a0045p.06                                                      _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                            ON BRIEF: Anthony Martinez, FEDERAL DEFENDER
                   FOR THE SIXTH CIRCUIT                                    SERVICES OF EASTERN TENNESSEE, INC.,
                     _________________                                      Chattanooga, Tennessee, for Appellant. Reginald Rose, III,
                                                                            Montgomery, Alabama, pro se.
 UNITED STATES OF AMERICA , X
                                                                                                _________________
              Plaintiff-Appellee, -
                                    -
                                                                                                    OPINION
                                    -   No. 02-5163
             v.                                                                                 _________________
                                    -
                                     >
                                    ,                                         KAREN NELSON MOORE, Circuit Judge.                       The
 REGINALD CHARLES ROSE ,            -                                       Defendant-Appellant, Reginald Charles Rose, III (“Rose”),
 III,                               -                                       appeals his convictions and sentence. Rose was convicted of
           Defendant-Appellant. -                                           conspiring to distribute fifty grams or more of
                                    -                                       methamphetamine mixture, in violation of 21 U.S.C. §§ 846
                                   N                                        and 841(b)(1)(B), and of knowingly and intentionally
         Appeal from the United States District Court                       carrying a firearm during and in relation to a drug trafficking
    for the Eastern District of Tennessee at Chattanooga.                   crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro
      No. 01-00061—Curtis L. Collier, District Judge.                       se brief, Rose raises several claims of error in the district
                                                                            court’s acceptance of his guilty pleas. Most of these errors
                 Submitted: September 9, 2003                               arise from discrepancies between the descriptions of the
                                                                            charges in Counts One and Three as stated in the Superseding
             Decided and Filed: February 11, 2004                           Indictment and as stated in his written plea agreement.
                                                                            Rose’s court-appointed counsel also filed an appellate brief
 Before: MOORE and GILMAN, Circuit Judges; MILLS,                           and a motion to withdraw pursuant to Anders v. California,
                 District Judge.*                                           386 U.S. 738 (1967), stating that he has found no meritorious
                                                                            grounds for appeal but nonetheless raising two possible
                                                                            claims of error in the calculation of Rose’s sentence.
                                                                              For the reasons set forth below, we VACATE Rose’s
                                                                            conviction and sentence as to Count One and REMAND for
                                                                            proceedings consistent with this opinion.

    *
     The Hon orable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.

                                   1
No. 02-5163                       United States v. Rose      3    4    United States v. Rose                        No. 02-5163

                    I. JURISDICTION                               B. Procedural Background
  The district court had jurisdiction pursuant to 18 U.S.C.         On April 11, 2001, Rose, Vasquez, and Estrada were
§ 3231 because Rose was charged with offenses against the         charged in a three-count Indictment. On May 22, 2001, a
laws of the United States. This court has jurisdiction over the   Superseding Indictment named an additional three co-
appeal under 28 U.S.C. § 1291 because Rose is appealing a         conspirators. In Count One of the Superseding Indictment,
conviction imposed by the district court.                         Rose and all five co-conspirators were charged with
                                                                  conspiring to distribute five hundred grams or more of a
                   II. BACKGROUND                                 mixture or substance containing a detectable amount of
                                                                  methamphetamine, in violation of 21 U.S.C. §§ 846,
A. Factual Background                                             841(a)(1), and 841(b)(1)(A). In Count Two, Rose, Vasquez,
                                                                  and Estrada were charged with distributing fifty grams or
  The facts of this case are not in dispute. “In March 2001,      more of a mixture or substance containing a detectable
agents with the Tennessee Bureau of Investigation (“TBI”)         amount of methamphetamine, in violation of 21 U.S.C.
received information from a confidential informant (“CI”)         § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. In Count Three,
that” Rose could deliver methamphetamine. Presentence             Rose, Vasquez, and Estrada were charged with knowingly
Report (“PSR”) at 5. The CI arranged to purchase one pound        and intentionally carrying a firearm during and in relation to
of methamphetamine from Rose and to have it delivered to a        the drug trafficking offenses set out in Counts One and Two,
residence in Meigs County, Tennessee. On March 19, 2001,          in violation of 18 U.S.C. §§ 2 and 924(c).
the CI and an undercover TBI agent met Rose at that
residence; additional TBI agents monitored the transaction.         On September 6, 2001, Rose pleaded guilty to Counts One
                                                                  and Three pursuant to a written plea agreement. A sentencing
  Ralph Vasquez (“Vasquez”), a co-defendant, accompanied          hearing was held on January 4, 2002, and a judgment was
Rose to the residence. Previously, in Dalton, Georgia, Eric       entered that same day, dismissing Count Two on the
Estrada (“Estrada”) had “fronted” the methamphetamine that        government’s motion. There are discrepancies between the
Rose was to deliver to the CI. Estrada had sent his associate,    descriptions of the charges in Counts One and Three as stated
Vasquez, along with Rose on the March 19, 2001 transaction        in the Superseding Indictment and as stated in the plea
to ensure that Estrada received payment.                          agreement.
   At the residence in Meigs County, Rose and Vasquez               On January 10, 2002, Rose filed a timely notice of appeal
negotiated to sell an additional two pounds of                    from the district court’s judgment. On July 19, 2002, Rose’s
methamphetamine to the CI. Rose and Vasquez told the CI           court-appointed counsel, Anthony Martinez, filed an Anders
that they would deliver this additional methamphetamine for       brief and a motion to withdraw. In his Anders brief, Rose’s
$20,000 at a later date. Rose and Vasquez then delivered the      counsel stated that after reviewing the entire record, he was of
original one pound of methamphetamine in exchange for             the opinion that there were no meritorious grounds for an
$11,500. Immediately thereafter, TBI agents arrested Rose         appeal. Nonetheless, in his Anders brief, Rose’s counsel
and Vasquez. When the TBI agents searched the car that            raised the issues of whether the district court erred by
Rose and Vasquez used to travel to Meigs County, they found       including the additional two pounds of methamphetamine
a loaded Colt .45 in plain view.                                  when determining Rose’s offense level and whether the
No. 02-5163                                United States v. Rose            5    6      United States v. Rose                           No. 02-5163

district court erred as to the extent of the downward departure                  additional two pounds of methamphetamine that Rose and
in Rose’s sentence on the government’s 5K1.1 motion.1                            Vasquez agreed to deliver should not have been considered in
                                                                                 calculating Rose’s sentence. The government has not filed an
  On August 29, 2002, Rose filed a pro se response to his                        appellate brief in this case.
counsel’s Anders brief. In his response, Rose raises the
following three claims of error: (1) that the district court                       The extensive and rather complicated procedural history
conducted Rose’s plea hearing in a manner that violated                          will be set out in more detail below as it pertains to each of
Federal Rule of Criminal Procedure 11 (“Rule 11") and that                       the issues.
the district court did not have jurisdiction to accept a plea to
an offense that was not charged in the Superseding                                                       III. ANALYSIS
Indictment;2 (2) that there was insufficient evidence to
support Rose’s conviction for carrying a firearm during and                      A. District Court’s Compliance With Rule 11 for Count
in relation to a drug trafficking offense;3 and (3) the                             One
                                                                                     1. Factual Background
    1
       The first issue, regarding the district court’s inclusion of the
add itional two pound s of methamp hetam ine whe n determining Rose’s
                                                                                   The description of the charge in Count One in the plea
base offense level, is analyzed more fully in United States v. Vasquez, 352      agreement differs from that in the Superseding Indictment. In
F.3d 1067 (6th C ir. 200 3), affirming the sentence of Ro se’s co-defendant,     the Superseding Indictment, Count One states:
Vasquez.
     The second issue , regard ing the district court’s grant of a three-level       REGINALD CHARLES ROSE, III, and others unknown
downward departure for the government’s 5K 1.1 motion, is meritless and              to the Grand Jury, did combine, conspire, confederate,
easily disposed of because we have held that a defendant cannot appeal
the degree of a district court’s downward departure for substantial                  and agree to knowingly, intentionally, and without
cooperation, so long as the district court remained within the sentencing            authority violate Title 21, United States Code, Sections
guidelines. Un ited States v. Gregory, 932 F.2d 116 7, 11 69 (6th Cir                841(a)(1) and 841(b)(1)(A), that is, to distribute 500
1991).                                                                               grams or more of a mixture or substance containing a
    2
                                                                                     detectable amount of methamphetamine, a Schedule II
      It is not clear whether Rose raises these as two distinct claims of            controlled substance, in violation of Title 21, United
error, but we will treat them as such. On page four of his brief, Rose               States Code, Section 846.
states, “The Court never had jurisdiction to sentence as the charges
presented to the Court were different than the charges brought in the
indictm ent.” App ellant’s Br. at 4. Then, on page five of his brief, Rose       R. at 35 (Superseding Indictment) (emphases added). In the
states, “In order to be able to make an informed decision on the plea            plea agreement, paragraph one states:
agree ment, Rose would have had to kno w that he was no t plead ing guilty
to the charges in the indictment, rendering the plea moot.” Id.                      The defendant [Rose] agrees to plead guilty to the
    3
                                                                                     following counts of a Superseding Indictment filed
      Again, it is not clear whether Rose is complaining about the                   against him in the above-styled case:
sufficiency of the evidenc e to sup port his conviction, or about the
sufficiency of the Superseding Indictment. Appellant’s Br. at 4. On page
four of his brief, Rose claim s the “cha rge can not stand on its merit,”
which seems to allege that the evide nce was insufficient to supp ort his        charge was no t “proper at indictment,” which seems to allege that the
conviction. Appellant’s Br. at 4. On that same page, Ro se also claims the       Supersed ing Indictment was insufficient. Id.
No. 02-5163                        United States v. Rose       7   8      United States v. Rose                       No. 02-5163

    Count One charging him with a violation of Title 21,               MR. LAYMON [government counsel]: Judge, as to both
    United States Code, Section 846, i.e., attempt to                  Mr. Rose and Mr. Vasquez, the first defendant and the
    violate Title 21, United States Code, Section                      third defendant, they’re pleading guilty pursuant to their
    841(a)(1) and 841(b)(1)(B), that is, to knowingly,                 plea agreements, which stipulate a plea to what would be
    intentionally and without authority distribute fifty               a lesser included offense, technically, I suppose, but it
    (50) grams or more of a mixture or substance                       would be (b)(1)(B) as opposed to (b)(1)(A). . . . [Rose
    c o n t a i n i n g a d e t e ct a b l e a m o u n t o f           and Vasquez] would be pleading guilty to 50 grams or
    methamphetamine, a Schedule II controlled                          more, which is the (b)(1)(B) provision.
    substance.
                                                                       THE COURT: So, Mr. Brooks, your client is pleading
R. at 81 (Plea Agreement) (emphases added). The description            guilty to the charge insofar as it alleges — is it 50 grams
of the charge in Count One in the plea agreement differs from          or less, and not guilty as the charge alleges over 50
that in the Superseding Indictment in three respects: (1) it           grams? Is that correct?
changes the charge from “conspiring to distribute” to
“attempting to distribute”; (2) it changes the statutory               MR. BROOKS: Your Honor, it’s 50 grams or more but
provision from 21 U.S.C. § 841(b)(1)(A) to 21 U.S.C.                   not over 500 grams.
§ 841(b)(1)(B); and (3) to correspond with the changed
statutory provision, it changes the drug quantity contained in         THE COURT: Okay. Fifty grams or more —
the description of the charge from “five hundred grams or
more” to “fifty grams or more.”                                        MR. BROOKS: That’s correct.

  At the plea hearing, the district court read the charge in           THE COURT: — but not over 500 grams?
Count One as it is stated in the Superseding Indictment. In
response, Rose pleaded guilty. After Rose pleaded guilty,              MR. BROOKS: That’s correct.
Vasquez’s attorney, Mr. Brooks, pointed out that Vasquez’s             THE COURT: He’s pleading not guilty to any amount
plea agreement changed the charge from a violation of                  of 500 or more grams?
21 U.S.C. § 841(b)(1)(A), conspiring to distribute five
hundred grams or more of methamphetamine mixture, to a                 MR. BROOKS: That’s correct, Your Honor.
violation of 21 U.S.C. § 841(b)(1)(B), the penalty for fifty
grams or more. The Assistant U.S. Attorney, Mr. Laymon,                MR. MARTINEZ: Judge, on behalf of Mr. Rose, also,
also acknowledged the change. Rose joined in Vasquez’s                 Your Honor.
objection regarding the change. The discussion went as
follows:                                                               THE COURT: Okay.
  MR. BROOKS [counsel for Vasquez]: Your Honor, our                Plea Hr’g Tr. at 14-15. Thus, at the plea hearing, the parties
  plea agreement says 50 grams, rather than 500 grams,             and the district court discussed the discrepancies between the
  which was the original indictment.                               Superseding Indictment and the plea agreement regarding the
                                                                   statutory provisions and the drug quantities. They did not,
  THE COURT: Mr. Laymon?
No. 02-5163                        United States v. Rose       9   10       United States v. Rose                              No. 02-5163

however, discuss the substitution of the attempt language for      in Rule 11(h)). An error is not harmless if the defendant’s
the conspiracy language.                                           substantial rights were affected. Id. In the present case, Rose
                                                                   did not raise below the issue of the district court’s compliance
  Also at the plea hearing, when stating the elements that the     with Rule 11. When a defendant did not contemporaneously
government would be required to prove in order to convict          object to the district court’s alleged failure to comply with the
Rose and Vasquez of the charges in Count One, the district         requirements of Rule 11, we review for plain error. United
court listed the elements for conspiracy, rather than attempt.     States v. Vonn, 535 U.S. 55, 59 (2002). “To establish plain
The district court stated:                                         error, a defendant must show (1) that an error occurred in the
                                                                   district court; (2) that the error was plain, i.e., obvious or
  In Count 1 you [Rose and Vasquez] are charged with a             clear; (3) that the error affected defendant’s substantial rights;
  conspiracy to distribute a mixture or substance which            and (4) that this adverse impact seriously affected the
  contained a detectable amount of methamphetamine. For            fairness, integrity or public reputation of the judicial
  you to be found guilty of this offense, the government           proceedings.” United States v. Koeberlein, 161 F.3d 946, 949
  would have to prove beyond a reasonable doubt the                (6th Cir. 1998).4
  following elements: (1) you conspired or agreed with at
  least one other person to commit the crime of distributing
  a mixture or substance which contained a detectable                   4
  amount of methamphetamine, and (2) you knowingly and                   W e are aware that the Sup reme Court rece ntly granted certiorari in
                                                                   United States v. Benitez, 310 F.3d 122 1 (9th Cir. 20 02), cert. granted, 72
  voluntarily joined the conspiracy.                               U.S.L.W . 3121 (U.S. Dec. 8, 2003) (No. 03-167), to decide whether a
                                                                   defendant, who pleaded guilty during a deficient Rule 11 proceed ing and
Plea Hr’g Tr. at 16.                                               did not contemporaneously object to the deficiency, must prove that he
                                                                   would not have pleaded guilty absen t the deficiency in o rder to ob tain
  2. Analysis                                                      reversal. W e are also aware that many of our sister circuits impose such
                                                                   a requirement on defendants seeking to obtain reversal under the plain-
  In his pro se brief, Rose appears to contend that the district   error standard, and so me even impose it on defendants seeking to ob tain
                                                                   reversal under the harmless-error standard. See, e.g., United States v.
court conducted Rose’s plea hearing in a manner that violated      Dixon, 308 F.3d 229 (3d Cir. 2002) (plain-error standard); United States
Rule 11, and thus prevented him from entering a valid guilty       v. Martinez, 289 F.3d 1023 (7th Cir. 2002) (plain-error standard); United
plea to Count One. The district court failed adequately to         States v. Martinez, 277 F.3d 517 (4th C ir.), cert. denied, 537 U.S. 899
inform Rose of the charges against him in Count One, failed        (2002) (plain-error standa rd); United States v. Prado, 204 F.3d 843 (8th
to determine whether Rose understood the charges against           Cir.), cert. denied, 531 U.S. 102 4 (2000 ) (harmless-error standard);
                                                                   United States v. We stcott, 159 F.3d 107 (2d Cir. 19 98), cert. denied, 525
him in Count One, and failed to ensure there was a sufficient      U.S. 1084 (1999) (harmless-error standard); United States v. Noriega-
factual basis for the charge. Rose, however, did not               Millan, 110 F.3d 162 (1st Cir. 1997) (harmless-error standard); United
contemporaneously object to the manner in which the district       States v. Lyons, 53 F.3d 1321 (D.C. Cir. 1995) (harmless-error standard);
court conducted his plea hearing.                                  United States v. Johnson, 1 F.3d 296 (5th C ir. 1993) (harmless-error
                                                                   standard); United States v. Vaughn, 7 F.3d 1533 (10th Cir. 1993), cert.
  When a defendant has raised the objection below, we              denied, 511 U.S. 103 6 (1994 ) (harmless-error standard).
                                                                        This circuit has not yet imposed on defendants, who seek to obtain
review the district court’s compliance with Rule 11 for            reversal of their convictions pursuant to guilty pleas based upon
harmless error. United States v. Syal, 963 F.2d 900, 904 (6th      deficiencies at their Rule 11 proceed ings, a requirement that they prove
Cir. 1992) (discussing the harmless error provision contained      that they would not have pleaded guilty absent the deficiencies, and we
                                                                   decline to do so in this case. Instead, we conclude that the error that
No. 02-5163                                United States v. Rose           11     12       United States v. Rose                           No. 02-5163

   Rule 11 specifies the procedure that district courts must                      11(f) requires: “Notwithstanding the acceptance of a plea of
follow when accepting a defendant’s guilty plea. Rule 11(c)                       guilty, the court should not enter a judgment upon such plea
requires, inter alia, “Before accepting a plea of guilty or nolo                  without making such inquiry as shall satisfy it that there is a
contendere, the court must address the defendant personally                       factual basis for the plea.” Fed. R. Crim. P. 11(f).6 Although
in open court and inform the defendant of, and determine that                     the procedure specified in Rule 11 is not constitutionally
the defendant understands . . . the nature of the charge to                       required, the purpose of Rule 11 is “to assist the district judge
which the plea is offered.” Fed. R. Crim. P. 11(c)(1).5 Rule                      in making the constitutionally required determination that a
                                                                                  defendant’s guilty plea is truly voluntary. . . . [and] to produce
                                                                                  a complete record at the time the plea is entered of the factors
                                                                                  relevant to this voluntariness determination.” McCarthy v.
occurred during Rose’s Rule 11 proceed ing was so egregious that it
prevented Rose from understanding what crime he was pleading guilty to,           United States, 394 U.S. 459, 465 (1969); see also Syal, 963
and thus constitutes plain erro r. We will not impose on Rose the burden          F.2d at 904.
of demonstrating that he would not have pleaded guilty absent the
deficiency.                                                                         We have decided several cases in which the defendant
      In so holding, we point out that this case is fundamentally different       claimed that the district court violated Rule 11 because the
from Benitez, in that the error that occurred in this case impugns the
ascertainment of Ro se’s guilt, whereas the error that occurred in Benitez
                                                                                  district court did not list the elements that the government
mere ly affected whether the defendant understood the terms of his plea           must prove beyond a reasonable doubt in order to convict the
bargain. W e conclude that the error that occurred in this case falls             defendant of the charges in the indictment. Compare Syal,
squarely within the requirements imposed by Fed. R. Crim. P. 52(b)                963 F.2d at 902-905 (holding that the district court’s failure
because it affected Rose’s substantial rights. Although a defendant in            even to “rehearse the content of the indictment” or to list the
order to ob tain reversal must typically sho w that the error was prejud icial,   elements of the crime violated Rule 11); United States v.
i.e., that it “affected the outco me o f the district court proceedings,” in
United States v. Olano, 507 U.S. 725, 734 -35 (1993), the Supreme C ourt          Goldberg, 862 F.2d 101, 108-09 (6th Cir. 1988) (holding that
stated: “There may be a special category of forfeited errors that can be          the district court’s failure to list the active concealment
corrected regardless of their effect on the outcome.” In Olano, the               element of the crime of misprision of a felony violated Rule
Supreme Court further stated that a “Court of Appeals should corre ct a           11 because that crime is uncommon); and United States v.
plain forfeited error affecting substantial rights if the error ‘seriously        Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) (holding that
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 736. Such an error occurred in this case.                   the district court’s “reading of the indictment and defendant’s
                                                                                  admission of guilt are not sufficient compliance” with
    5
      In 2003, Rule 11 was amended and renumbered. The 2003 version               Rule 11 where the crime charged is complex and not easily
requires district courts to conduct an even more thorough inquiry into a          understood), with United States v. Edgecomb, 910 F.2d 1309,
defendant’s understanding of the charges against her before accepting a
plea of guilty or nolo contendere. In this opinion, we cite to the 2002
version of Rule 11, which was in effect when Rose pleaded guilty. On
remand, the district court should ensure that it complies with the 2003                defendant understands, the following:
version of Rule 11.                                                                        ...
    W hat used to be Rule 1 1(c)(1) is no w part of Rule 11(b)(1 ). Rule                   (G) the nature of each charge to which the defendant is
11(b )(1) now provide s:                                                                   pleading.
    Before the court accepts a plea of guilty or nolo contendere, the                  6
    defendant may be placed under oath, and the co urt must address                     W hat used to be R ule 11 (f) is now Rule 1 1(b)(3). N ew Rule
    the defendant perso nally in op en co urt. During this address, the           11(b )(3) requires: “Before entering judgment on a guilty plea, the court
    court must inform the defendant of, and determine that the                    must determine that there is a factual basis fo r the plea.”
No. 02-5163                        United States v. Rose      13    14    United States v. Rose                        No. 02-5163

1313 (6th Cir. 1990) (holding that district court adequately        involves consideration of the nature of the charge and the
explained the conspiracy charge at issue in that case by            dialogue that took place between the defendant and the Court
reading the indictment accompanied by the government’s              during the Rule 11 proceeding.” Van Buren, 804 F.2d at 891.
recitation of the factual basis, because the conspiracy was         In Edgecomb, this court considered the crime of conspiracy to
easily understood and the district court read the charges in the    possess cocaine with intent to distribute and held that the
indictment); and United States v. Ferguson, No. 96-6029,            crime as alleged in that case, is easily understood, and thus
1997 WL 764471, at *3-*4 (6th Cir. Dec. 3, 1997) (holding           the district court there complied with Rule 11 by merely
that the district court’s failure to read the charges in the        reading the indictment where the government described the
indictment or list the elements of conspiracy to distribute         facts constituting that conspiracy. Edgecomb, 910 F.2d at
drugs did not violate Rule 11 because that crime is easily          1313. In this case, however, an examination of the record and
understood, the government gave a detailed description of the       the dialogue that took place between the defendant and the
defendant’s conduct, the district court questioned the              district court reveals that the defendant did not understand the
defendant regarding the conduct that constituted the offense,       nature of the charge to which he was pleading guilty.
and the defendant stated that he had discussed the charges
with his attorney and understood the charges). Thus, we have           Here, the district court read the description of the charge in
concluded that when a defendant claims that the district court      Count One from the Superseding Indictment, while Count
violated Rule 11 by failing during the plea colloquy to list the    One was stated differently in the plea agreement. Rose
elements of the crime charged, the sufficiency of the plea          objected to the district court’s reading of Count One of the
colloquy depends upon the complexity of the crime charged.          Superseding Indictment, insofar as it charged Rose with
“Where the crime is easily understood, several courts have          conspiring to distribute five hundred grams of
held that a reading of the indictment, or even a summary of         methamphetamine, in violation of § 841(b)(1)(A), instead of
the charges in the indictment and an admission by the               fifty grams of methamphetamine, in violation of
defendant, is sufficient to establish a factual basis.” Van         § 841(b)(1)(B). Rose clarified that he was only pleading
Buren, 804 F.2d at 892. Additionally, we have held that a           guilty to fifty grams of methamphetamine, in violation of
simple conspiracy to distribute drugs is easily understood, and     § 841(b)(1)(B), and thus obviated any Rule 11 problems that
thus a district court may comply with this part of Rule 11 by       might have arisen from the discrepancies between the
merely reading the conspiracy charge from the indictment and        Superseding Indictment and the plea agreement regarding the
asking the defendant whether he understands it. Edgecomb,           statutory provisions and the drug quantities. Rose did not
910 F.2d at 1313.                                                   object, however, to the district court’s reading of Count One
                                                                    of the Superseding Indictment, insofar as it charged Rose with
   Although Rose was convicted of a simple conspiracy to            conspiring to distribute methamphetamine, instead of
distribute methamphetamine, a crime this court has held is          attempting to distribute methamphetamine. Therefore, the
easily understood, we hold that the district court nonetheless      district court failed to determine whether Rose understood
violated Rule 11(c)(1), and thus prevented Rose from entering       that he was pleading guilty to conspiracy. The description of
a valid guilty plea. Rule 11(c)(1) requires the district court to   the charges in the plea agreement indicates that Rose thought
inform the defendant of the charges against him and to              he was pleading guilty to attempt. The district court,
determine whether the defendant understands the nature of the       however, accepted Rose’s guilty plea and entered a judgment
charge to which he is pleading guilty. Fed. R. Crim. P.             of conviction on the crime of conspiring to distribute
11(c)(1). “[A] determination of defendant’s understanding           methamphetamine. Because Rose might not have understood
No. 02-5163                        United States v. Rose      15    16       United States v. Rose                              No. 02-5163

that he was pleading guilty to conspiring to distribute             crime to which the plea is offered “cannot be said to be
methamphetamine, rather than attempting to distribute               harmless.” 963 F.2d at 905. In reaching this conclusion, in
methamphetamine, he did not enter a valid guilty plea to            Syal, we noted that the defendant’s substantial rights were
Count One.                                                          affected by the district court’s failure to list the elements. Id.
                                                                    at 904. For the reasons discussed above, the errors committed
   Rule 11(f) requires the district court to determine that there   by the district court in this case affected Rose’s substantial
is a sufficient factual basis for the charge to which the           rights. To meet the higher plain error standard, in addition to
defendant is pleading guilty. Fed. R. Crim. P. 11(f). We have       finding that the errors affected Rose’s substantial rights, we
held, “[W]hile the exact method of producing a factual basis        must also find that the error “seriously affected the fairness,
on the record is subject to a flexible standard of review, the      integrity or public reputation of the judicial proceedings.”
need to have some factual basis will continue to be a rule          Koeberlein, 161 F.3d at 949. Because the district court’s
subject to no exceptions.” Goldberg, 862 F.2d at 106                violations of Rule 11 prevented Rose from understanding the
(quoting United States v. Fountain, 777 F.2d 351, 357 (7th          charge to which he was pleading guilty, the violations
Cir. 1985)). We have also recognized that the district court        seriously affected the fairness of the proceedings and rose to
may determine the existence of a factual basis from various         the level of plain error.
sources, including a statement by the prosecutor or a
statement by the defendant. Id. at 105. The description of the      B. District Court’s Jurisdiction to Accept Rose’s Guilty
charges in the plea agreement indicates that Rose thought he           Plea to Attempt
was pleading guilty to the crime of attempting to distribute
methamphetamine mixture. When ascertaining whether there               In his pro se brief, Rose also appears to argue that the
was a sufficient factual basis, the district court merely asked     district court lacked jurisdiction to accept Rose’s guilty plea
Rose whether the written factual basis in the plea agreement        and to sentence Rose on Count One because Rose pleaded
was true as far as Rose knew, and Rose agreed. Rose’s               guilty to attempting to distribute methamphetamine, which
confusion regarding the charge to which he was pleading             was not charged in the Superseding Indictment. The colloquy
guilty likely spilled over into his concession that the factual     at Rose’s plea hearing and the district court’s judgment of
basis was true, and thus his concession does not constitute a       conviction indicate that Rose actually pleaded guilty to
sufficient factual basis. Because the district court did not        conspiring to distribute methamphetamine, which was
determine that there was a sufficient factual basis for             charged in the Superseding Indictment. Therefore, the district
conspiring to distribute methamphetamine mixture, Rose did          court did not, as Rose contends, actually accept a guilty plea
not enter a valid guilty plea to Count One.                         to a crime not charged in the Superseding Indictment. This
                                                                    conclusion and our decision to vacate Rose’s plea due to the
   All of the Sixth Circuit cases cited above, discussing the       Rule 11 violations makes further analysis of this assignment
procedure the district court must follow when accepting a           of error unnecessary.7
defendant’s guilty plea, were decided under the harmless error
standard. In this case, however, Rose did not raise the issue
of compliance with Rule 11 in the district court. Therefore,
we must review the district court’s actions for plain error.             7
Vonn, 535 U.S. at 59. In Syal, we held that, in a complex                W e do, however, point out that “defects in an indictment do not
                                                                    deprive a court of its power to adjudicate a case.” United States v. Cotton,
case, the district court’s failure to list the elements of the      535 U .S. 625, 630 (200 2).
No. 02-5163                               United States v. Rose          17     18   United States v. Rose                        No. 02-5163

C. Sufficiency of the Evidence for Count Three                                  18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, a
                                                                                defendant can be charged and convicted of violating § 924(c)
   In his pro se brief, Rose argues that there was insufficient                 under three different theories, including (1) using a firearm
evidence to support his conviction on Count Three of the                        during and in relation to a drug trafficking crime, (2) carrying
Superseding Indictment, which charged Rose with carrying a                      a firearm during and in relation to a drug trafficking crime, or
firearm during and in relation to a drug trafficking crime, in                  (3) possessing a firearm in furtherance of a drug trafficking
violation of 18 U.S.C. § 924(c).8 By pleading guilty, Rose                      crime. Rose was charged under the “carry” prong of § 924(c).
admitted the truth of all of the facts set forth in the
Superseding Indictment. United States v. Parker, 292 F.2d 2,                      Rose argues that to be charged under the “carry” prong, the
2 (6th Cir. 1961); see also United States v. Kyle, No. 01-6014,                 defendant must have actively employed the firearm. In his
2001 WL 1580232, at *4 (6th Cir. Dec. 6, 2001).                                 brief, Rose states:
Furthermore, the district court properly determined that the
facts stated in the Superseding Indictment and the factual                        A weapon in a car does not satisfy the carry standard set
basis are sufficient to support a conviction for carrying a                       forth in 18 USC § 924(c)(1)(a). [sic]. Bailey v US, 516
firearm during and in relation to a drug trafficking offense;                     US 137.
therefore, we reject this assignment of error.
                                                                                  In Bousley v US, 523 US 614, the Court held that, active
  Section 924(c) provides:                                                        employment of a firearm is a requirement of charging a
                                                                                  defendant with 924(c). Active employment includes uses
  any person who, during and in relation to any crime of                          such as brandishing, displaying, bartering, striking with,
  violence or drug trafficking crime . . . for which the                          firing, or attempting to fire the weapon, but does not
  person may be prosecuted in a court of the United States,                       include mere possession of a firearm; thus, a defendant
  uses or carries a firearm, or who, in furtherance of any                        cannot be charged under § 924(c)(1) merely for
  such crime, possesses a firearm, shall, in addition to the                      (1) storage of a weapon near drugs or drug proceeds, or
  punishment provided for such crime of violence or drug                          (2) placement of a firearm to provide a sense of security
  trafficking crime —                                                             or to embolden.
     (i) be sentenced to a term of imprisonment of not less                     Appellant’s Br. at 4. Although Rose is correct that Bailey v.
         than 5 years.                                                          United States, 516 U.S. 137, 138-39 (1995), and Bousley v.
                                                                                United States, 523 U.S. 614, 616 (1998), discuss the active
                                                                                employment requirement, in those cases, the defendants were
    8
      At one p oint, Rose seems to allege that the Superseding Indictment       convicted under the “use” prong of § 924(c). In the present
was insufficient on this count. Appellant’s Br. at 4 (stating that the charge   case, Rose was charged under the “carry” prong of § 924(c).
was not “proper at indictment”). This court has held, “In order for an          In Bailey, the Supreme Court held that to obtain a conviction
indictment to be sufficient, it must con tain the elements of the offense       under the “use” prong, the government must show that the
charged and fairly inform a defendant of the charges against which he
must defend.” Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989)         defendant actively employed the firearm. Bailey, 516 U.S. at
(citing Ham ling v. United States, 418 U.S. 87, 117 (197 4)). T his claim
has no merit because Count Three clearly charged Rose with carrying a
firearm during and in relation to a drug trafficking offense, in violation of
18 U.S.C. § 92 4(c).
No. 02-5163                            United States v. Rose         19    20   United States v. Rose                       No. 02-5163

148-49.9 The Court further held that showing that the                      (Factual Basis). Rose and Vasquez used this automobile to
defendant merely possessed the firearm was not sufficient to               transport the methamphetamine from Dalton, Georgia, to
obtain a conviction under the “use” prong; therefore, “A                   Meigs County, Tennessee. Under Muscarello and Hilliard,
defendant cannot be charged under [the “use” prong of]                     a defendant may be convicted under the “carry” prong if he
924(c)(1) merely for storing a weapon near drugs or drug                   possesses and conveys a firearm. The district court’s finding
proceeds.” Bailey, 516 U.S. at 149.                                        that the firearm was located in the passenger compartment of
                                                                           the car Rose used to travel to Meigs County and to deliver the
   The Court in Bailey additionally noted that the government              methamphetamine was sufficient evidence to support Rose’s
is not required to show that a defendant actively employed the             conviction under the “carry” prong. Therefore, we reject
firearm to obtain a conviction under the “carry” prong. Id. at             Rose’s claim that there was insufficient evidence to support
150 (stating, “The ‘carry’ prong of § 924(c)(1) . . . brings               his conviction for carrying a firearm during and in relation to
some offenders who would not satisfy the ‘use’ prong within                a drug trafficking offense, in violation of 18 U.S.C. § 924(c).
the reach of the statute”). Later, in Muscarello v. United                 Moreover, the fact that we are vacating Rose’s conviction on
States, 524 U.S. 125, 128-39 (1998), the Court discussed the               Count One does not require us to vacate Rose’s conviction on
elements the government must prove to obtain a conviction                  Count Three because § 924(c) only requires that the district
under the “carry” prong of § 924(c). To obtain a conviction                court be convinced that the defendant carried a weapon in
under the “carry” prong, the government must show the                      connection with a drug trafficking offense for which he may
defendant transported the firearm, with some degree of                     be prosecuted. United States v. Ospina, 18 F.3d 1332, 1335-
agency or control, during and in relation to a drug trafficking            36 (6th Cir.), cert. denied, 512 U.S. 1226 (1994).
crime. See Muscarello, 524 U.S. at 134, 139; Hilliard v.
United States, 157 F.3d 444, 449 (6th Cir. 1998). In                       D. District Court’s Compliance with Rule 11 for Count
Muscarello, the Court held that the government may obtain a                Three
conviction under the “carry” prong by showing the defendant
transported the firearm in his car during and in relation to a               1. Factual Background
drug crime. 524 U.S. at 139. The Court stated that the
“carry” prong “applies to a person who knowingly possesses                   The description of the charge in Count Three in the plea
and conveys firearms in a vehicle, including in the locked                 agreement also differs from that stated in the Superseding
glove compartment or trunk of a car, which the person                      Indictment. In the Superseding Indictment, Count Three
accompanies.” Id. at 126-27.                                               states:

   In the present case, the factual basis accompanying Rose’s                RALPH VASQUEZ, REGINALD CHARLES ROSE,
plea agreement states, “After Rose and Vasquez were arrested                 III, and ERIC ESTRADA, aided and abetted by each
in Meigs County, police found a loaded .45 caliber handgun                   other, did knowingly and intentionally carry a firearm,
in the passenger compartment of [their] automobile.” R. at 86                that is, a loaded .45 caliber Colt handgun, during and in
                                                                             relation to the drug trafficking crimes set out in Counts
                                                                             One and Two above, in violation of Title 18, United
                                                                             States Code, Sections 2 and 924(c).
    9
      Bousley discusses “the p ermissibility of po st-Bailey collateral
attacks on § 924(c)(1) convictions obtained p ursuan t to guilty pleas.”
Bousley, 523 U.S. at 618.
No. 02-5163                       United States v. Rose     21    22   United States v. Rose                       No. 02-5163

R. at 34 (Superseding Indictment) (emphasis added). In the          2. Analysis
plea agreement, paragraph one states:
                                                                     Unlike the discrepancy between the two versions of Count
  The defendant agrees to plead guilty to the following           One, the difference between the language of Count Three in
  counts of a Superseding Indictment filed against him in         the Superseding Indictment and in the plea agreement did not
  the above-styled case:                                          prevent Rose from entering a valid guilty plea to Count
                                                                  Three. In the Superseding Indictment, Rose was charged both
  . . . Count Three charging him with a violation of              as a principal and as an aider and abettor; therefore, the
  Title 18, United States Code, Section 924(c), that is,          district court did not err in reading the elements for carrying
  knowingly and intentionally carry [sic] a firearm, during       a firearm as a principal and accepting Rose’s plea to carrying
  and in relation to a drug trafficking crime.                    a firearm as a principal.
R. at 81 (Plea Agreement). Thus, the description in the plea         As discussed above, when a defendant did not
agreement of the charge in Count Three omits the “aided and       contemporaneously object to the district court’s alleged
abetted by each other” language that is included in the           failure to comply with the requirements of Rule 11, we review
Superseding Indictment.                                           for plain error. Vonn, 535 U.S. at 59. Rule 11 specifies the
                                                                  procedure to be followed by a district court in accepting a
  At Rose’s plea hearing, the district court read the charge in   defendant’s guilty plea. Rule 11(c) requires, among other
Count Three from the Superseding Indictment, including the        things, that “[b]efore accepting a plea of guilty or nolo
“aided and abetted by each other” language. In response,          contendere, the court must address the defendant personally
Rose pleaded guilty. No objections were made regarding the        in open court and inform the defendant of, and determine that
district court’s reading of the charge in Count Three. Also at    the defendant understands . . . the nature of the charge to
the plea hearing, when stating the elements that the              which the plea is offered.” Fed. R. Crim. P. 11(c).
government would be required to prove in order to convict
Rose and Vasquez on the charge in Count Three, the district          Count Three of the Superseding Indictment charges Rose
court omitted the “aided and abetted by” language. The            with carrying a firearm during and in relation to a drug
district court stated:                                            trafficking crime, aided and abetted by the co-conspirators.
                                                                  The plea agreement, however, describes Count Three as only
     In Count 3 you are charged, Mr. Vasquez and Mr.              charging Rose with carrying a firearm in relation to a drug
  Rose, with carrying a firearm during and in relation to         trafficking crime. Thus, the “aided and abetted” language
  the commission of a drug-trafficking offense. For you to        included in the Superseding Indictment was omitted from the
  be convicted of this crime, the government would have           plea agreement. During the plea colloquy, the district court
  to prove beyond a reasonable doubt the following two            read Count Three, as stated in the Superseding Indictment,
  elements: (1) you committed the drug-trafficking offense        but then listed the elements for carrying a firearm without
  alleged in Count 1 of the superseding indictment, and           listing the aiding and abetting requirement.
  (2) during and in relation to the commission of that drug-
  trafficking offense, you knowingly carried a firearm.             The omission of the “aided and abetted by” language from
                                                                  the plea agreement and from the district court’s reading of the
Plea Hr’g Tr. at 16.                                              elements of the offense during the plea colloquy did not
No. 02-5163                             United States v. Rose        23     24    United States v. Rose                             No. 02-5163

prevent Rose from entering a valid guilty plea to Count                     defendant’s conviction for aiding and abetting another in
Three. In Count Three of the Superseding Indictment, Rose                   receiving illegal firearms, even though the indictment did not
was charged as both a principal and an aider and abettor;10                 include language referring to aiding and abetting liability.11
therefore, the district court did not err in reading the elements           Id. at *13. The reasoning of Taniguchi applies in this case.
for carrying a firearm as a principal or accepting Rose’s plea              The omission of the “aided and abetted language” from the
to carrying a firearm as a principal. Count Three of the                    plea agreement and from the district court’s reading of the
Superseding Indictment states that the defendants “aided and                elements of the offense during the plea colloquy does not
abetted by each other, did knowingly and intentionally carry                constitute a violation of Rule 11.
a firearm.” This language charged Rose with carrying the
firearm himself, as well as aiding and abetting the other                   E. Drug Quantity Used to Calculate Rose’s Sentence
defendants in the offense of carrying a firearm. To charge a
defendant with aiding and abetting, but not committing the                    1. Factual Background
crime himself, an indictment would state that the defendant
aided and abetted another in the commission of the crime.                      On January 4, 2002, Rose was sentenced to 138 months’
See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th                  imprisonment (seventy-eight months on Count One and sixty
Cir.), cert. denied, 493 U.S. 834 (1989) (considering the                   months on Count Three) and four years of supervised release.
defendant charged “with aiding and abetting [another] in                    At the sentencing hearing, Rose joined Vasquez’s objection
knowingly receiving and possessing illegal machine guns in                  to the amount of methamphetamine used to determine each of
violation of 18 U.S.C. § 2 and 26 U.S.C. § 5861(c)”).                       their base offense levels. During the objection, Vasquez
Because Count Three of the Superseding Indictment charged                   argued that under United States Sentencing Guidelines
Rose with carrying a firearm as a principal and the written                 (“U.S.S.G.”) § 2D1.1, Application Note 12 (“Note 12”), the
plea agreement described Count Three as charging Rose with                  additional two pounds of methamphetamine that Rose and
carrying a firearm as a principal, the district properly advised            Vasquez agreed to deliver should not be considered in
Rose of the nature of the charges against him in compliance                 determining his base offense level because Vasquez and Rose
with Rule 11(c)(1).                                                         were not reasonably capable of delivering the additional two
                                                                            pounds due to their imminent arrest.
  Additionally, in a recent unpublished opinion, we held that
aiding and abetting is “merely a theory of liability, and not an              In response to the objection, the government argued that
offense distinct in and of itself.” United States v. Taniguchi,             under Note 12, these additional two pounds of
Nos. 00-4495, 00-4496, 2002 WL 31371978, at *13 (6th Cir.                   methamphetamine should be considered in determining
Oct. 11, 2002) (citing United States v. Schuh, 289 F.3d 968,                Rose’s and Vasquez’s base offense levels because they agreed
976 (7th Cir. 2002)). In Taniguchi, we upheld the                           to deliver, intended to deliver, and were reasonably capable
                                                                            of delivering the additional two pounds. The government
                                                                            supported its argument by showing that during the same
    10
        Regard less of whether this additional language makes the
Superseding Indictment duplicitous or is mere surplusage, Rose may not           11
argue that the Superseding Indictment is defective on these bases because           In Taniguchi, we held that the indictment was sufficient because
by pleading guilty, Rose waived his objection to all non-jurisdictional     it cited 18 U.S.C. § 2, which addresses aiding and ab etting liability.
defec ts in the indictment. United States v. Moloney, 287 F.3d 236, 239     United States v. Taniguchi, Nos. 00-4495, 00-4496, 2002 WL 31371978,
(2d Cir. 2002).                                                             at *13 (6th Cir. Oct. 11, 2002).
No. 02-5163                            United States v. Rose        25     26   United States v. Rose                        No. 02-5163

month, Estrada, Rose’s and Vasquez’s supplier, engaged in                  one pound of methamphetamine that Rose actually delivered
transactions for one-half of a pound, one pound, and two                   and the additional two pounds of methamphetamine that Rose
pounds of methamphetamine.12                                               agreed to deliver. Note 12 provides:
  The district court overruled the objection and accepted the                In an offense involving an agreement to sell a controlled
calculations contained in the Presentence Report (“PSR”).                    substance, the agreed-upon quantity of the controlled
The PSR used the additional two pounds of                                    substance shall be used to determine the offense level
methamphetamine that Rose and Vasquez agreed to deliver                      unless the sale is completed and the amount delivered
and the one pound of methamphetamine that Rose and                           more accurately reflects the scale of the offense. . . . If,
Vasquez actually delivered to determine Rose’s base offense                  however, the defendant establishes that he or she did not
level. In accordance with the PSR, the district court set                    intend to provide, or was not reasonably capable of
Rose’s base offense level for Count One at level thirty-two.                 providing, the agreed-upon quantity of the controlled
Rose received a three-level downward adjustment for                          substance, the court shall exclude from the offense level
acceptance of responsibility, making Rose’s total offense                    determination the amount of controlled substance that the
level twenty-nine for Count One. The district court also                     defendant establishes that he or she did not intend to
granted a downward departure of three levels in accordance                   provide or was not reasonably capable of providing.
with the government’s § 5K1.1 motion, which reduced Rose’s
offense level to twenty-six and resulted in a sentencing                   U.S.S.G. § 2D1.1, cmt. n.12 (2001). Rose failed to prove that
guideline range of eighty-seven to ninety-seven months for                 he did not intend to provide or that he was not reasonably
Count One.                                                                 capable of providing the additional two pounds of
                                                                           methamphetamine; therefore, the district court properly used
  2. Analysis                                                              a drug quantity of three pounds of methamphetamine mixture
                                                                           to determine Rose’s base offense level.
  Rose’s claim of error regarding the quantity of drug used to
determine his base offense level is identical to his co-                     Rose raises one additional claim of error regarding the
defendant’s claim, which this court analyzed fully in United               calculation of his sentence. Rose contends that the PSR
States v. Vasquez, 352 F.3d 1067 (6th Cir. 2003). Consistent               incorrectly attributes 4.5 pounds of methamphetamine
with Vasquez, we hold that the district court did not err in               mixture to him in the determination of his base offense level.
determining Rose’s base offense level based upon both the                  This claim is meritless because it is based upon a misreading
                                                                           of the PSR. Although the PSR refers to a drug quantity of 4.5
                                                                           pounds of methamphetamine mixture, it attributes that
    12
                                                                           amount to Garnica, Estrada’s supplier. The 4.5 pounds was
       During March 2 001 , the Georgia Bureau of Investigation (“GBI”)    not attributed to Rose.           Only three pounds of
investigated Estrada and Hector Garnica (“Garnica”). On March 12,          methamphetamine mixture were attributed to Rose and his
2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia
CI. Then, on March 1 6, 20 01, E strada and Braulio Garnica (“Braulio”)
                                                                           offense level was based upon a drug quantity of three pounds
delivered an additional one pound of methamphetamine to the CI. On         of methamphetamine mixture.
March 18, Estrada arranged to deliver two pounds of methamphetamine
to the same CI for $19,000 . On M arch 24, 2001 , Braulio delivered the
two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica,
and another charged co-co nspirator were also prese nt at that delivery.
No. 02-5163                     United States v. Rose   27

                  IV. CONCLUSION
  The district court committed plain error by accepting
Rose’s guilty plea to Count One in a manner that violated
Rule 11. The district court did not commit plain error in
accepting Rose’s guilty plea to Count Three. Therefore, we
VACATE Rose’s conviction and sentence as to Count One
and REMAND for proceedings consistent with this opinion.
