                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0301n.06

                                             No. 08-6173

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                    May 10, 2011
UNITED STATES OF AMERICA,                                  )
                                                           )                  LEONARD GREEN, Clerk
          Plaintiff-Appellee,                              )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Eastern
RODNEY DAVIS,                                              )   District of Tennessee
                                                           )
          Defendant-Appellant.                             )




Before:          BATCHELDER, Chief Judge; and BOGGS and WHITE, Circuit Judges.

                 BOGGS, Circuit Judge.

          This case requires us to consider how much confusion can enter a Rule 11 colloquy before

a defendant’s plea is rendered invalid. Rodney Davis pled guilty to conspiracy to distribute five

kilograms or more of a substance containing cocaine and fifty grams or more of a substance

containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). For this crime,

he faced a mandatory penalty of life imprisonment. Davis now claims he was unaware that pleading

guilty would mean spending his entire life in prison because the plea colloquy was so misleading.

We disagree and affirm the conviction.

                                                   I

          On September 25, 2002, Davis and nine other defendants were indicted for their participation

in a drug conspiracy. Davis was charged with four of the twenty-two counts in the indictment, and
No. 08-6173
United States v. Davis

chose to plead guilty rather than go to trial. On August 10, 2007, a plea agreement was signed in

which Davis agreed to plead guilty to a single count—a drug offense punishable under 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A). The penalty for this crime is as follows:

        If any person commits such a violation after a prior conviction for a felony drug
        offense has become final, such person shall be sentenced to a term of imprisonment
        which may not be less than 20 years and not more than life imprisonment . . . . If any
        person commits a violation of this subparagraph . . . after two or more prior
        convictions for a felony drug offense have become final, such person shall be
        sentenced to a mandatory term of life imprisonment without release . . . . [A]ny
        sentence under this subparagraph shall, in the absence of such a prior conviction,
        impose a term of supervised release of at least 5 years in addition to such term of
        imprisonment and shall, if there was such a prior conviction, impose a term of
        supervised release of at least 10 years in addition to such term of imprisonment.

21 U.S.C. § 841(b)(1)(A) (emphasis added). Davis had two prior felony drug offenses: a 1992

conviction for selling and delivering cocaine, and another 1992 conviction for possession of cocaine.

Because of these crimes, Davis was subject to the steep penalty of mandatory life imprisonment

without the possibility of release.

        Davis entered a plea agreement, which stated: “The punishment for this offense is as follows.

. . . Because the defendant has two prior felony convictions, imprisonment for a term of not less than

life; [and] . . . supervised release for at least ten (10) years and up to life . . . .” In fact, Davis would

not be placed on supervised release. The statute explicitly provides that someone with two prior

drug felonies will be punished with “a mandatory term of life imprisonment without release.” 21

U.S.C. § 841(b)(1)(A). The plea agreement went on to establish the facts underlying the plea and

discuss the court’s discretion to set Davis’s final sentence under the U.S. Sentencing Guidelines.




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No. 08-6173
United States v. Davis

       At Davis’s change-of-plea hearing on August 16, 2007, the possibility of supervised release

was brought up again.

       Prosecutor: Because Mr. Davis has those two prior drug felony convictions, the
       statute requires that he serve a term of life imprisonment, a fine of up to $ 8 million,
       supervised release for a period of at least 10 years and up to life, and lawful
       restitution, and a 100-dollar special assessment. (emphasis added)

       The Court: Mr. Davis, if your plea is accepted, you will be adjudged guilty of the
       offense, and this may deprive you of valuable civil rights, such as the right to vote,
       the right to hold public office, the right to serve on a jury, and the right to possess any
       kind of firearms. Knowing these penalties, do you still wish to plead guilty?

       Davis: Yes, sir.

Later, the court discussed its discretion to impose a sentence under the advisory Sentencing

Guidelines. Davis stated that he was aware he would not be released on parole. However, the

district court then immediately asked Davis: “Do you understand that as part of your sentence you

might receive a term of supervised release?”

       Nonetheless, Davis acknowledged at the plea hearing that he had ample time to discuss the

plea agreement and the consequences of pleading guilty with his attorney, and appeared to display

an understanding of the consequences of his plea. The prosecutor and Davis’s attorney mentioned

that the mandatory life sentence had been brought to Davis’s attention. Davis also admitted that he

signed the plea agreement, and that it contained all his understandings about the case.

       After the court accepted Davis’s plea, the Probation Department prepared a Presentence

Investigation Report (PSR).       This document was unambiguous: “The minimum term of

imprisonment for Count One is LIFE.” PSR ¶ 56. “Based on a total offense level of 35 and a

criminal history category of VI the guideline range for imprisonment is 292 to 365 months.

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No. 08-6173
United States v. Davis

However, since the statutory mandatory minimum is LIFE, the effective guideline range is

LIFE.” Id. ¶ 58. Davis made no objection to the PSR.

        At sentencing in January 2008, Davis indicated that he had received and read the PSR, as

well as discussed it with his attorney. The mandatory life sentence was also presented more clearly.

However, the district court persisted in informing Davis that he would also receive a term of

supervised release. Davis made no objection to the sentence.

        Following sentencing, Davis timely appealed. His attorney filed a brief under Anders v.

California, 386 U.S. 738 (1967), and moved to withdraw. Davis then filed a pro se brief in this

court, to which the government responded. We granted prior counsel’s motion to withdraw and

appointed new counsel with instructions to brief the issue of whether Davis understood the sentence

that he would receive as a consequence of his plea.

                                                    II

        Davis did not object to any violation of Rule 11 in the district court even after he saw the

PSR’s unambiguous statement of his minimum sentence. We therefore review this claim only for

plain error. Fed. R. Crim. P. 52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); cf. United States

v. Reader, 254 F. App’x 479, 481-82 (6th Cir. 2007) (reviewing an alleged Rule 11 violation for

plain error because the defendant “was silent concerning the defect in his plea hearing after receiving

actual notice in his PSR of the correct maximum term”). The plain-error standard requires a

defendant to show: “(1) error (2) that ‘was obvious or clear’ (3) that ‘affected defendant’s substantial

rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’”

United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). When a defendant seeks

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No. 08-6173
United States v. Davis

reversal because of an unpreserved Rule 11 error, the Supreme Court has held that the defendant

must show “a reasonable probability that, but for the error, he would not have entered the plea” to

establish that the error affected his substantial rights. United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004).

                                                 III

       On appeal, Davis raises three arguments relating to the Rule 11 colloquy: that the district

court erred by not informing Davis of the mandatory life sentence he faced; that the district court

erred by not ensuring that Davis understood the mandatory life sentence; and that the injection of

irrelevant and misleading information regarding his sentence rendered his plea invalid. None of

these claims warrant relief.



A. Whether the district court erred by allowing the prosecutor to inform Davis of his mandatory

minimum sentence

       Federal Rule of Criminal Procedure 11(b)(1) requires that “[b]efore the court accepts a plea

of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the

defendant personally in open court.” The Rule goes on to say that the court “must inform the

defendant of, and determine that the defendant understands,” among other things, “any mandatory

minimum penalty.” Fed. R. Crim. P. 11(b)(1)(I). During his plea hearing, the district court

delegated this responsibility to the prosecutor, asking, “please advise Mr. Davis of the maximum

punishment he faces for this offense. And if there is a mandatory minimum sentence, please advise

him of that, also.” Davis now claim that this delegation, by itself, was reversible error. We disagree.

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No. 08-6173
United States v. Davis

        It is well established that a prosecutor’s explanation can satisfy Rule 11(b)(1)(N), which

requires a district court to inform a defendant about any appeal waiver provisions in his plea

agreement. “A defendant is sufficiently informed that he has waived his right to appeal if the

prosecutor, rather than the district court, summarizes the terms of the plea agreement and specifically

explains that the defendant agreed to waive his right to appellate review.” United States v. Zumot,

337 F. App’x 520, 523 (6th Cir. 2009) (citing United States v. McGilvery, 403 F.3d 361, 362 (6th

Cir. 2005)); see also United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006) (“We hold that,

because the terms of the plea agreement were fully explained to defendant in open court, Rule

11(b)(1)(N) was not violated.”); United States v. Sharp, 442 F.3d 946, 952 (6th Cir. 2006) (“The

district court satisfied Rule 11 of the Federal Rules of Criminal Procedure by ensuring that the

appellate-waiver provision was discussed in open court and that Sharp understood his plea

agreement.”). Davis does not try to distinguish this line of cases, but rather stands on the literal

language of Rule 11.

        We see no reason to draw distinctions between Rule 11’s provisions regarding mandatory

minimums and appeal waivers in this context. “Our cases make clear that the proper inquiry under

Rule 11 is whether the defendant was informed of and understood the terms of the plea agreement.”

Sharp, 442 F.3d at 951. When the prosecutor addresses the defendant in open court to explain the

mandatory minimum, the defendant has been informed. Indeed, our analyses under Rule 11(b)(1)(N)

do not assume that a prosecutor’s explanation is inferior to the court’s. Rather, the inquiry is focused

on whether the defendant understood the terms as the prosecutor or the court explained them. See,

e.g., United States v. Berro, 348 F. App’x 98, 102 (6th Cir. 2009) (focusing on whether the

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No. 08-6173
United States v. Davis

prosecutor’s explanation of the appeal waiver was clear and whether the district court sufficiently

followed up). It was therefore not reversible error, by itself, for the district court to have the

prosecutor read Davis his mandatory minimum sentence.



B. Whether the district court erred by not ensuring that Davis understood the minimum sentence

       Davis also claims that the district court erred by not specifically inquiring as to whether Davis

understood the mandatory minimum he faced after the prosecutor informed him of it. We have held

that a district court need not ask specific follow-up questions about an appeal waiver to satisfy Rule

11(b)(1)(N). See, e.g., United States v. Shearer, 301 F. App’x 450, 454 (6th Cir. 2008) (citing

Sharp, 442 F.3d at 951). Moreover, even if we were to distinguish mandatory minimums in this

context, the record shows that the district court asked Davis sufficiently specific questions to satisfy

Rule 11. After the prosecutor informed Davis about the statutory minimum sentence he faced and

the district court explained the civic consequences of a guilty plea, the court asked if Davis,

“knowing these penalties,” still wished to plead guilty. The district court also asked whether “you

and your attorney talked about the possible sentence you might receive.” In response, Davis

indicated, “[y]es, sir, we have.” These questions indicate that the district court made a sufficient

inquiry into Davis’s understanding of his minimum sentence.



C. Whether the plea hearing as a whole was so misleading that Davis did not understand the

mandatory minimum penalty he faced



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No. 08-6173
United States v. Davis

       Finally, Davis argues that the plea hearing was so filled with extraneous information,

irrelevant to his particular sentence, that he was misled into believing he might receive a sentence

shorter than life imprisonment.

       The district court’s plea colloquy and the government’s plea agreement—both apparently

derived from scripts—interjected into the proceeding two elements that were irrelevant to a

mandatory life sentence: supervised release and the court’s authority under the advisory Sentencing

Guidelines. Ordinarily, these topics would not present a problem. Indeed, the district court is

required to inform a defendant about its obligation to consider the guidelines and the 18 U.S.C. §

3553(a) factors. Fed. R. Crim. P. 11(b)(1)(M). However, this case is unusual. Davis was facing a

mandatory sentence of life imprisonment—the district court had no authority to set any other

sentence and Davis was never going to be released. Thus, although the plea agreement and the

prosecutor’s statement during the plea hearing were explicit that Davis faced life imprisonment, he

nonetheless argues that the omission of “without release,” the mention of supervised release, and the

inclusion of discussions about the district court’s authority to set Davis’s sentence misled him into

believing he would not serve out his entire life in prison.

       Even if we assume that these remarks constitute error, they do not warrant reversal because

Davis cannot show an effect on his substantial rights. To meet this burden, Davis would have to

demonstrate a “reasonable probability that, but for the error, he would not have entered the plea.”

Dominguez Benitez, 542 U.S. at 83. We look to the record as a whole in making that determination.

Ibid. For example, the Supreme Court has found relevant a defendant’s statement that he did not

intend to go to trial and that the evidence against him was overwhelming. Id. at 84-84. Here, there

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No. 08-6173
United States v. Davis

is similar evidence that Davis would have pled guilty even in the absence of the allegedly misleading

remarks.

        For one thing, the record indicates that Davis almost certainly understood the minimum

sentence he faced. The mandatory life sentence was, after all, read aloud to him in open court and

included in his plea agreement. The presence of additional, misleading language can only slightly

undermine that fact. Cf. United States v. Williams, 176 F.3d 301, 309-10 (6th Cir. 1999) (rejecting

a claim that the defendant, who received a prison sentence of more than ten years, was misled when

the district court said it would “probably” sentence the defendant to prison if the guilty plea was

accepted). Further, Davis reported that he had a good relationship with his lawyer and that his

lawyer explained the consequences of his plea, including his sentence. Davis’s lawyer and the

prosecutor both indicated that Davis was aware of the life sentence.

        As evidence of his misunderstanding, Davis argues that no one would plead guilty to life

without parole because there is no benefit to such a plea. See United States v. Walden, 625 F.3d 961,

964 (6th Cir. 2010). But, the record also indicates that Davis made a strategic gamble with his plea.

The evidence against him was overwhelming and the sentencing transcript reveals that the

government had been working with Davis to get him a lower sentence. If he had provided enough

assistance in the prosecution of others for the government to move under 18 U.S.C. § 3553(e), then

the court would have had discretion to set Davis’s sentence as something lower than life. Davis also

indicated in a letter filed to the court that he pled guilty on his attorney’s advice to “tell what I know




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United States v. Davis

of others committing illegal activities to receive a [departure under USSG §] 5K1[.1]1 so that’s

exactly what I did . . . .” Although he was ultimately unsuccessful, we must look to his state of mind

at the time the plea was entered. The record supports the finding that, even in the absence of the

allegedly confusing language that Davis raises here, Davis would have made the decision to plead

guilty and hope for a deal with the government.

                                                  IV

       For these reasons, the district court’s judgment is AFFIRMED.




       1
         United States Sentencing Guideline § 5K1.1 allows the court to make a departure for
substantial assistance, but it does not, by itself, allow the court to go below the statutory minimum
sentence. United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007). However, the same
substantial assistance can be grounds for a motion under 18 U.S.C. § 3553(e), which does allow the
court to deviate below the minimum sentence.

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No. 08-6173
United States v. Davis

       HELENE N. WHITE, Circuit Judge (dissenting). Because I cannot, on this record,

comfortably conclude that Davis understood that his plea of guilty would result in a mandatory life

sentence, I respectfully dissent from my colleagues’ thoughtful opinion. I would remand to allow

Davis to change his plea.

       As the majority opinion recognizes, the district court injected confusion into the plea hearing

by referring to matters that, while proper in a usual plea proceeding, were confusing in Davis’s case.

Davis divides the confusing and contradictory statements of the district court into three categories:

       (1) statements regarding how Davis’s sentence would be calculated under the
       Sentencing Guidelines (which, in fact, had no bearing on Davis’s sentence because
       of the statutory minimum)[1]; (2) statements to the effect that Davis’s ultimate
       sentence was within the sole discretion of the district court (which was simply
       incorrect, in light of the statutory minimum)[2]; and (3) statements about the terms
       of Davis’s release from prison (which were affirmatively misleading, in view of the
       statutory minimum of life imprisonment without the possibility of parole).[3]




       1
         See Plea Hr’g Tr. 11 (“[T]he United States Sentencing Commission has issued guidelines
for judges to consider in determining the sentence in a criminal case. The Court, however, is not
bound by these Guidelines and may lawfully impose a sentence upon you up to and including the
maximum punishment that Mr. Sullivan stated.”); id. at 12-13 (“[Your] sentence may be more severe
or less severe than the sentence called for by the sentencing guidelines[.]”).
       2
        See Plea Hr’g Tr. 12 (“Do you also understand that your sentence will be determined by me
and that I will consider the sentencing guidelines in setting your sentence but I may also consider
other factors after I have received and reviewed the presentence report and heard what you, your
attorney, and the government have to say with regards to an appropriate sentence in this case . . . .”).
       3
        See Plea Hr’g Tr. 13 (“Do you also understand that as a part of your sentence you might
receive a term of supervised release?”); see also id. at 10 (prosecutor’s statement that “the statute
requires that he serve a term of life imprisonment, a fine of up to $8 million, supervised release for
a period of at least 10 years and up to life, any lawful restitution, and a 100-dollar special
assessment” (emphasis added)).

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No. 08-6173
United States v. Davis

(Appellant Br. 23.) Because the district court had no discretion to sentence Davis to anything less

than life in prison without possibility of release, these statements were misleading. See 21 U.S.C.

§ 851(d)(1) (“If the person files no response to the information, or if the court determines, after

hearing, that the person is subject to increased punishment by reason of prior convictions, the court

shall proceed to impose sentence upon him as provided by this part.” (emphasis added)); 21 U.S.C.

§ 841(b)(1)(A) (providing for “a mandatory term of life imprisonment without release” for a person

with two or more prior felony drug convictions). The record lacks sufficient indication that Davis

actually understood the mandatory life sentence he faced, as required by Fed. R. Crim. P. 11(b)(1)(I),

and I would hold that the totality of the district court’s incorrect and contradictory statements

constituted plain error.

        To constitute plain error, there must be “(1) error (2) that was obvious or clear, (3) that

affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)

(internal quotation marks omitted). In the context of a challenge to a court’s proper administration

of Rule 11, showing that the court’s error affected defendant’s substantial rights requires the

defendant to “show a reasonable probability that, but for the error, he would not have entered the

plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). If there is “evidence tending

to show that a misunderstanding was inconsequential to a defendant’s decision,” there is no effect

on the defendant’s substantial rights. Id. at 84.

        To affect a defendant’s substantial rights, there must be “nothing in the record [that] indicates

that the defendant independently knew or was advised of the correct” mandatory minimum sentence.

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United States v. Davis

United States v. Smagola, 390 F. App’x 438, 442 (6th Cir. 2010) (unpublished); see also United

States v. Syal, 963 F.2d 900, 906 (6th Cir. 1992) (holding that “the failure to notify the defendant of

the term of supervised release and its possible effect on his sentence was not harmless error” where

“[n]othing in the record suggests that the defendant understood that his sentence would include

supervised release [and] [t]here was no written plea agreement by which he might have been

warned”). While the record does seem to show that Davis’s attorney understood the mandatory life

sentence, it only implies, but does not clearly demonstrate, that Davis himself understood. The lack

of affirmative indication at the hearing from Davis himself supports Davis’s argument that he did not

know he was subject to a mandatory life sentence, and that he would have opted to go to trial had

he known. Further, even if Davis had been informed of the mandatory life sentence by his attorney

at the start of the hearing, the court’s repeated misleading statements as the hearing progressed may

have served to convince him that the life sentence was not in fact mandatory, and that the court had

discretion to impose a lesser sentence.

       The government argues that Davis knowingly entered into the plea agreement in an effort

to have the government move under § 3553(e) for a lesser sentence to reward Davis’s “substantial

assistance in the investigation or prosecution of another person who has committed an offense.” 18

U.S.C. § 3553(e). Aside from the letter cited by the majority, and an oblique reference by Davis’s

attorney at the sentencing hearing,4 the record does not contain evidence that Davis understood that



       4
         “And to be quite honest, the government and the agents involved with him have worked hard
with us to try and get us to a point where we can help him, but we haven’t been able to do so to this
point.” (Sentencing Hr’g Tr. 5.)

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No. 08-6173
United States v. Davis

this was the plan, and that he would definitely be sentenced to life in the absence of the desired

motion. The government’s account provides a plausible explanation, but without more in the record

to substantiate it, it cannot overcome the district court’s plain error.             The government’s

unsubstantiated argument aside, Davis received no benefit from pleading guilty because he was

subject to a mandatory life sentence either way. Thus, “[t]here is a reasonable probability, sufficient

to satisfy the plain error standard, that [Davis] would have gone to trial, had he . . . understood[] that

he faced the same mandatory minimum sentence whether he pled guilty or went to trial on the single

charged offense.” United States v. Valdez, 243 F. App’x 217, 219 (9th Cir. 2007) (unpublished).

        “In cases involving Rule 11 errors, [this court] ha[s] stated that ‘where the error involves the

defendant's state of mind . . . the appropriate remedy is to vacate the plea and remand so that the

defendant can plead anew’ if he chooses, or proceed to trial.” United States v. Reader, 254 F. App’x

479, 482 (6th Cir. 2007) (unpublished) (quoting United States v. Tunning, 69 F.3d 107, 115 (6th Cir.

1995)). Although the prosecutor and the plea agreement did state that Davis faced a mandatory life

sentence, both the plea agreement and the plea hearing were so confusing in their totality that it is

impossible to be sure that Davis understood the applicable mandatory minimum sentence as required

by Rule 11(b)(1)(I).

        To be sure, many of the boilerplate statements and warnings required of a sentencing court

conflict with a mandatory sentence. But the resulting uncertainty should be clarified with an

unambiguous statement that the defendant faces a mandatory minimum sentence of life

imprisonment. It is a district court’s task to ensure that the defendant understands the sentence he



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No. 08-6173
United States v. Davis

faces, and to provide a sufficient record to verify that Rule 11 was followed when the case reaches

us on appeal.5 I would remand to allow Davis to withdraw his plea and proceed to trial.




       5
        Although no particular formulation is required, the goal should be to assure that the
defendant understands the consequences of the contemplated guilty plea. An excess of caution is
not inappropriate under these circumstances, and would have supported addressing Davis as follows:

       Mr. Davis, in the course of these proceedings, I have made a number of references
       to the sentencing guidelines, supervised release, my discretion as a judge to choose
       what I think is an appropriate sentence, and similar statements. But these statements
       really don’t apply to your situation. In your case, because of your prior felony drug
       convictions, the law provides for a mandatory sentence of life imprisonment, from
       which no supervised release is possible. This means that if you plead guilty, nothing
       else matters and I must impose a life sentence. The only way a life sentence can be
       avoided is if the Government chooses to file a motion under § 3553(e). But, the
       Government gets to decide whether to file such a motion. You may cooperate with
       the Government and the Government may still decide not to file the motion. So, do
       you understand what I just explained to you? Please tell me in your own words what
       you think I just explained? Do you have any questions? Understanding this, do you
       still wish to enter a plea of guilty?

I do not imply that such a detailed statement is required, only that it is advisable.

                                                - 15 -
