     Case: 13-40136      Document: 00512493842         Page: 1    Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 13-40136
                                                                                FILED
                                                                          January 8, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff - Appellee,
v.

JOSHUA WALLACE,

                                                 Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-595-1


Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Joshua Wallace pleaded guilty after being informed during
his plea colloquy that he faced a maximum sentence of ten years in prison.
The district court then sentenced Wallace to 160 months in prison based on
the Armed Career Criminal Act (“ACCA”). The government concedes there
was error and requests that the judgment be vacated and the case remanded
to the district court for trial or a new plea with a full understanding of the
penalties faced. We VACATE and REMAND.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 13-40136
                                            I.
      In a five-count indictment, a grand jury charged Wallace with being a
felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (counts one through three) and with possession of a stolen firearm
in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (counts four and five).
Pursuant to a plea agreement, Wallace pleaded guilty to count one and
waived his right to appeal his conviction and sentence, unless the sentence
imposed exceeded the statutory maximum. 1                In return, the government
agreed to dismiss the other four counts. The government also agreed that if
Wallace provided substantial assistance it would recommend a reduction in
his sentence as permitted by § 5K.1.1 of the United States Sentencing
Guidelines (the “Guidelines”); however, the plea agreement did not obligate
the government to do so if in its opinion Wallace did not provide substantial
assistance. The plea agreement did not specify any mandatory minimum or
maximum sentence.
      During the guilty plea colloquy required by Rule 11 of the Federal
Rules of Criminal Procedure, the district court advised Wallace that he faced
a ten-year maximum sentence under §§ 922(g) and 924(a)(2). According to
the pre-sentence investigation report (“PSR”), however, Wallace had five
prior violent felony convictions and was therefore subject to the higher
penalties imposed by the ACCA. Contrary to what the district court advised
him in the plea colloquy, this resulted in Wallace being subject to a
mandatory minimum sentence of fifteen years in prison. Wallace did not



      1  The government does not seek to invoke the appeal waiver. In any event, Wallace’s
appeal waiver cannot be enforced because he challenges the validity of the plea agreement
itself. See United States v. Carreon–Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012)
(explaining that an appeal waiver “cannot be enforced to bar a claim that the waiver
itself—or the plea agreement of which it was a part—was unknowing or involuntary”)
(citation and internal quotation marks omitted)).
                                            2
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                                      No. 13-40136
object to the plea colloquy, nor did he file an objection to the PSR.
       At sentencing, the government moved for a downward departure under
§ 5K.1.1 of the Guidelines based on Wallace’s substantial assistance. The
government asked the court to sentence Wallace below the fifteen-year
statutory minimum imposed by the ACCA to 160 months of imprisonment.
The district court granted the government’s motion and sentenced Wallace to
160 months of imprisonment.
       On appeal, Wallace argues that the district court failed to comply with
Rule 11 by advising him during the plea colloquy that he faced a maximum
ten-year sentence when in fact he was subject to a fifteen-year mandatory
minimum sentence under the ACCA. 2 The government filed a brief conceding
that the district court’s judgment should be vacated.
                                            II.
       Because Wallace did not object to the district court’s plea colloquy, we
review for plain error. United States v. Oliver, 630 F.3d 397, 411 (5th Cir.
2011) (citing United States v. Vonn, 535 U.S. 55, 59 (2002)). Under plain
error review, Wallace must show: (1) an error, (2) that is plain, (3) and that
affected his substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). After this showing, we have discretion to remedy the error (4) “only if
the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Escalante–Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (alterations in original) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). As the government concedes, the district
court’s mistaken statement during the plea colloquy regarding Wallace’s


       2 Wallace also challenges the use of his five prior convictions to enhance his
sentence, arguing that he should not have been sentenced under the ACCA. Because we
vacate and remand the district court’s decision based upon Wallace’s Rule 11 argument, we
do not reach this issue. Wallace is free to raise it at the district court if he again faces
sentencing under the ACCA.
                                             3
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                                     No. 13-40136
potential sentence satisfies all four prongs of plain error review.
      “A district court commits Rule 11 error when accepting a guilty plea if
it fails to inform the defendant accurately of the proper minimum sentence
that will result from the plea.” United States v. Carreon–Ibarra, 673 F.3d
358, 364 (5th Cir. 2012) (citation and internal quotation marks omitted); see
Fed. R. Crim. P. 11(b)(1)(I).         More specifically, the Supreme Court has
explained that “[i]f [a] judge told [a] defendant that the maximum possible
sentence was 10 years and then imposed a sentence of 15 years based on
ACCA, the defendant would have been sorely misled and would have a
ground for moving to withdraw the plea.” United States v. Rodriquez, 553
U.S. 377, 384 (2008).
       Almost an identical error occurred here—the district court incorrectly
advised Wallace that he faced a maximum sentence of ten years when in fact
he faced a minimum sentence of fifteen years based on the ACCA. 3 Given the
rule of Carreon–Ibarra and the fact that the Supreme Court has specifically
noted that what occurred here would be grounds for moving to withdraw a
guilty plea, we have no difficulty concluding that the error was “clear or
obvious.” Puckett, 556 U.S. at 135. The first two prongs of plain error review
are therefore satisfied in this case.
      To satisfy prong three of plain error review, i.e., the error affected his
substantial rights, Wallace must show that there is a reasonable probability
that but for the Rule 11 error, he would not have pleaded guilty. United
States v. Alvarado–Casas, 715 F.3d 945, 953 (5th Cir. 2013). It is undisputed



      3  Although Wallace subsequently received a downward departure under § 5K.1.1 of
the Guidelines, he did not have assurance when entering his plea that he would benefit
from a downward departure, and he may have contemplated that his substantial assistance
would reduce his sentence to below the ten-year maximum of which he was advised during
the plea colloquy. In any event, his ultimate sentence of 160 months was still forty months
in excess of the ten-year maximum.
                                            4
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                                No. 13-40136
that Wallace has met this burden. If Wallace had known that he faced a
minimum sentence of fifteen years based on the ACCA, rather than a
maximum sentence of ten years, there is a reasonable probability he would
not have pleaded guilty. See United States v. Guerra, 94 F.3d 989, 995 (5th
Cir. 1996) (setting aside a conviction where a defendant pleaded guilty with
“erroneous information as to the possible penalty he faced”). Moreover, this
is not a case where declining the plea agreement would have exposed the
defendant to a potentially higher imprisonment range—the PSR stated that
had Wallace been convicted at trial of all five counts in the indictment, his
imprisonment range would have remained the same. Cf. Alvarado–Casas,
715 F.3d at 945–55 (third prong of plain error review not satisfied when it
was “not reasonably probable that [the defendant] would have declined the
plea deal and exposed himself to a higher potential Guidelines range and
maximum sentence”).
      Finally, although we exercise our discretion under the fourth prong of
plain error review “sparingly,” United States v. Young, 470 U.S. 1, 15 (1985),
we find it appropriate to exercise our discretion to remedy this error. Telling
Wallace that he faced a maximum sentence of ten years and then sentencing
him to 160 months, forty months more, resulted in him being “sorely misled,”
in the words of the Supreme Court. Rodriquez, 553 U.S. at 384. Wallace has
shown that what occurred to him affected the “fairness, integrity, or public
reputation” of the judicial proceeding. See Escalante–Reyes, 689 F.3d at 426.
                                     III.
      We VACATE the judgment and sentence, and REMAND for
proceedings consistent with this opinion.




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