PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-5178
JESSIE BEN HAIRSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-04-8)
Argued: February 1, 2008
Decided: April 3, 2008
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: Jon Ian Davey, Danville, Virginia, for Appellant. Jean
Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee. ON BRIEF: John L. Brown-
lee, United States Attorney, Edward A. Lustig, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
2 UNITED STATES v. HAIRSTON
OPINION
TRAXLER, Circuit Judge:
Jessie Ben Hairston pleaded guilty to multiple charges involving
the distribution of drugs and unlawful possession of firearms. There
is no real dispute that a Rule 11 error occurred during the plea collo-
quy. See Fed. R. Crim. P. 11. Although the error involved only some
of the counts to which Hairston pleaded guilty, we conclude that the
proper remedy is to vacate Hairston’s guilty pleas and convictions as
to all charges and permit him to plead anew.
I.
Hairston was indicted on thirty-one counts of various drugs and
firearms charges — one count of conspiracy to make a false statement
on a firearm transaction form, see 18 U.S.C.A. § 371 (West 2000);
eight counts of distribution of crack cocaine, see 21 U.S.C.A. § 841
(West 1999 & Supp. 2007); fourteen counts of unlawful possession
of a firearm by a convicted felon, see 18 U.S.C.A. § 922(g)(1) (West
2000); and eight counts of use of a firearm during a drug trafficking
crime, see 18 U.S.C.A. § 924(c) (West Supp. 2007). Hairston and the
government entered into a plea agreement under which the govern-
ment dismissed six of the § 924(c) charges and Hairston pleaded
guilty to the remaining charges. The plea agreement contemplated
that Hairston might provide substantial assistance in other prosecu-
tions and stated that the government retained discretion to determine
whether it would seek a sentence reduction based on the assistance
provided by Hairston.
The plea agreement spelled out the possible sentences on the
charges to which Hairston would be pleading guilty. As to the
§ 922(g) and drug distribution charges, the agreement stated that
Hairston faced a sentence of zero to ten years. The plea agreement
explained that the first § 924(c) count carried with it a mandatory sen-
tence of five years that must be served consecutively to the other sen-
tences and that the second § 924(c) count carried with it a mandatory
sentence of twenty-five years that must be served consecutively to all
other sentences. Hairston thus agreed to plead guilty to charges for
UNITED STATES v. HAIRSTON 3
which he would receive (absent a substantial assistance motion by the
government) a sentence of at least thirty years.
During the Rule 11 proceeding, the district court reviewed the
terms of the plea agreement with Hairston. The district court
recounted the minimum and maximum sentences as set forth in the
plea agreement, including zero to ten years for each of the § 922(g)
counts and mandatory consecutive sentences of five and twenty-five
years for the § 924(c) counts. The district court concluded that there
was a factual basis for the charges against Hairston and that Hairston
understood the terms of the plea agreement and was freely and intelli-
gently entering into the agreement. The district court therefore
accepted Hairston’s guilty plea.
During the course of the presentence investigation, the probation
officer determined that Hairston should be sentenced as an armed
career criminal under 18 U.S.C.A. § 924(e) (West Supp. 2007), a
determination that greatly affected the minimum sentence Hairston
faced. As set forth in the plea agreement and during the Rule 11 collo-
quy, the sentence for a § 922(g) violation ordinarily is not more than
ten years. See 18 U.S.C.A. § 924(a)(2) (West 2000). Section 924(e),
however, imposes a mandatory minimum sentence of fifteen years for
a violation of § 922(g) if the defendant has three previous qualifying
convictions.1 See 18 U.S.C.A. § 924(e)(1). Hairston’s designation as
an armed career criminal thus meant that instead of the thirty-year
minimum sentence spelled out in the plea agreement and discussed
during the Rule 11 colloquy, Hairston in fact faced a minimum sen-
tence of forty-five years — a fifteen-year minimum sentence for the
§ 922(g) charges, plus consecutive five- and twenty-five-year sen-
tences for the § 924(c) counts.
At the sentencing hearing, the district court adopted the recommen-
dations contained in the presentence report. After the government
explained why it was declining to file a substantial assistance motion,
1
Section 924(e) applies only to defendants who have three prior con-
victions for violent felonies or serious drug offenses that were committed
on occasions different from one another. See 18 U.S.C.A. § 924(e)(1).
Hairston does not dispute that his prior convictions count as predicate
convictions under § 924(e).
4 UNITED STATES v. HAIRSTON
the district court, in accordance with the calculations in the presen-
tence report, imposed a sentence of fifteen years on the § 922(g) charges2
and imposed sentences of five years and twenty-five years on the
§ 924(c) charges, to run consecutively to the other sentences and to
each other, for a total term of forty-five years’ imprisonment.
The forty-five-year total sentence seemed to take the parties by sur-
prise. Counsel for Hairston noted that the plea agreement stated that
the sentence for the § 922(g) charges was zero to ten years and that
the agreement did not mention even the possibility of a mandatory
fifteen-year sentence if Hairston qualified as an armed career crimi-
nal. The government explained that it had repeatedly advised Hairston
that he faced a minimum sentence of thirty years, but counsel for the
government acknowledged that he had simply "overlooked" the possi-
bility that Hairston would qualify as an armed career criminal. J.A.
98. Hairston himself summarized the problem fairly effectively:
[Y]ou are telling me I waived all of my rights to take 45
years, when my lawyer told me I was waiving all my rights
to take 30 years.
Now, please tell me what is going on here. Tell me I
signed for 30 years and that’s the 30 years that I should get
or are you telling me that no one made me aware that I was
signing for 45 years? That’s totally against what I signed.
And that’s not right. . . .
...
. . . Your Honor, I would not have signed a paper for 45
years. My kids would never see me again. I took the 30
years with the possibility that the government would keep
me alive, that I would be able to spend whatever life I had
left with my children.
2
The district court also sentenced Hairston to five years on the false
statement charge and fifteen years on the drug distribution charges.
Because those sentences were concurrent with the sentence imposed on
the § 922(g) charges, they do not affect our analysis.
UNITED STATES v. HAIRSTON 5
I would never have signed for no 45 years. That’s not
what I was left to understand that I was signing the paper
for.
J.A. 94, 96. Hairston sought to withdraw his plea, explaining to the
district court that if he faced a sentence of forty-five years, he would
have a better chance if he went to trial. See J.A. 91.
After considering the parties’ arguments and considering the proba-
tion officer’s explanation of the sentence calculations, the district
court refused to permit Hairston to withdraw his guilty pleas. The
court explained that while Hairston had hoped that the government
would file a substantial assistance motion and that he would receive
a thirty-year sentence as a result of that motion, Hairston had never
been promised that he would receive a thirty-year sentence. Without
the armed career criminal designation, Hairston’s advisory Guidelines
sentencing range for the drug-distribution and § 922(g) charges was
168 to 210 months. Because the fifteen-year sentence mandated by
§ 924(e) was within the otherwise applicable Guideline range, the dis-
trict court believed that any misunderstanding about the minimum
sentence for the § 922(g) charges was not significant.
II.
A.
The Federal Rules of Criminal Procedure require a district court,
before accepting a guilty plea, to "personally inform the defendant of,
and ensure that he understands, the nature of the charges against him
and the consequences of his guilty plea." United States v. Damon, 191
F.3d 561, 564 (4th Cir. 1999); see Fed. R. Crim. P. 11(b). Rule 11
requires the district court to explain to the defendant, among other
things, the nature of each charge to which he is pleading guilty, the
maximum penalty he faces, as well as "any mandatory minimum pen-
alty" he faces. Fed. R. Crim. P. 11(b)(1)(I). On appeal, Hairston con-
tends that the district court violated Rule 11 by not informing him
before accepting his guilty pleas that he faced a mandatory fifteen-
year minimum sentence on the § 922(g) charges. The government
does not disagree with Hairston and concedes error on this point.
6 UNITED STATES v. HAIRSTON
Although the government’s concession of error is not binding on
this court, see United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th
Cir. 2006), it is apparent that a Rule 11 error occurred in this case.
As discussed above, the district court during the plea colloquy told
Hairston that the sentence for the § 922(g) counts would be between
zero and ten years; the district court did not mention the possibility
of a fifteen-year minimum sentence if Hairston qualified as an armed
career criminal. Rule 11 does not require courts to inform defendants
of the applicable Guidelines sentencing ranges, see United States v.
Good, 25 F.3d 218, 222 (4th Cir. 1994), but it does require district
courts to inform defendants of all potentially applicable statutory
minimum and maximum sentences. See id. at 223 (explaining that
Rule 11 requires the district court to "clearly advise a defendant of the
statutory maximum [and] any mandatory minimum"); United States
v. Cobia, 41 F.3d 1473, 1476 (11th Cir. 1995) (per curiam) (conclud-
ing that the district court during a Rule 11 colloquy must notify the
defendant of § 924(e)’s mandatory minimum sentence). And while
the district court at the time of the Rule 11 proceeding could not have
been certain about whether Hairston would qualify as an armed career
criminal, Rule 11 nonetheless required the court to anticipate the pos-
sibility and explain to Hairston the sentence that would be applicable
if he had prior qualifying convictions.3 See United States v. Richard-
son, 121 F.3d 1051, 1058 (7th Cir. 1997) (finding no Rule 11 error
where district court informed felon-in-possession defendant that he
faced a maximum sentence of ten years unless he qualified as an
armed career criminal, in which case there would be a mandatory
minimum sentence of fifteen years); cf. United States v. Goins, 51
F.3d 400, 404 (4th Cir. 1995) (rejecting government’s suggestion that
"enumerating all possible minimum sentences" would impose an
"onerous" burden on the district court). Accordingly, we conclude that
the district court violated Rule 11 by not informing Hairston before
accepting his guilty plea that he could face a mandatory fifteen-year
sentence on the § 922(g) charges.
3
Although the presentence report eventually informed the parties of the
mandatory minimum sentence, Rule 11 violations cannot be cured by a
PSR prepared after a guilty plea was accepted. See United States v.
Goins, 51 F.3d 400, 404 (4th Cir. 1995).
UNITED STATES v. HAIRSTON 7
B.
The mere existence of a Rule 11 error is not enough to warrant
reversal, as the rule itself instructs us to disregard "harmless" errors
— errors that do not "affect substantial rights." Fed. R. Crim. P.
11(h). Hairston preserved the Rule 11 issue by seeking to withdraw
his guilty plea below, see United States v. Martinez, 277 F.3d 517,
524 n.8 (4th Cir. 2002), and the government therefore bears the bur-
den of showing that the Rule 11 error was harmless. See United States
v. Olano, 507 U.S. 725, 734 (1993); see also United States v. Vonn,
535 U.S. 55, 58, 63 (2002).
When determining whether a Rule 11 error affected a defendant’s
substantial rights, we consider what information was provided to the
defendant when he pleaded guilty, what additional information would
have been provided by a proper Rule 11 colloquy, and how the addi-
tional information would have affected the decision to plead guilty.
See United States v. Thorne, 153 F.3d 130, 133 (4th Cir. 1998);
Goins, 51 F.3d at 402. The overarching inquiry is whether there is a
reasonable probability that the defendant would not have pleaded
guilty had there been no Rule 11 error. See United States v. Domin-
guez Benitez, 542 U.S. 74, 83 (2004) ("We hold . . . that a defendant
who seeks reversal of his conviction after a guilty plea, on the ground
that the district court committed plain error under Rule 11, must show
a reasonable probability that, but for the error, he would not have
entered the plea."); Thorne, 153 F.3d at 133 ("If a review of the
record indicates that the oversight influenced the defendant’s decision
to plead guilty and impaired his ability to evaluate with eyes open the
direct attendant risks of accepting criminal responsibility, then sub-
stantial rights were violated." (internal quotation marks omitted)).
The clarity of the record below makes our resolution of the harm-
lessness inquiry straightforward. Hairston pleaded guilty to multiple
§ 922(g) counts for which the Guidelines sentencing range was 168
to 210 months. Hairston also pleaded guilty to two § 924(c) counts
carrying statutorily mandated minimum sentences of five years and
twenty-five years, sentences that by statute must run consecutively to
each other and to any other sentence imposed. Because the Sentenc-
ing Guidelines are no longer mandatory, the district court was not
required to follow them with regard to the § 922(g) counts. Moreover,
8 UNITED STATES v. HAIRSTON
the government in the plea agreement had agreed to consider filing a
substantial-assistance motion on Hairston’s behalf. Thus, when Hairs-
ton pleaded guilty it was at least possible (if unlikely) that the district
court would decline to impose a prison term for the § 922(g) counts
and that Hairston would be sentenced to prison for no more than the
thirty years required for the § 924(c) charges.
The mandatory minimum sentence triggered by Hairston’s designa-
tion as an armed career criminal, however, completely changed the
sentencing calculus. Although Hairston had believed when he pleaded
guilty that his best-case scenario was a thirty-year prison term, he
learned at sentencing that his best-case scenario in fact was a forty-
five-year prison term. The district court did not inform Hairston about
the possibility that he would be sentenced as an armed career crimi-
nal, and there is nothing in the record to show that Hairston otherwise
had knowledge of the armed career criminal sentence enhancement.
These facts alone are likely enough to foreclose any claim by the
government that the Rule 11 error was harmless. See Thorne, 153
F.3d at 133; Goins, 51 F.3d at 402. But if there is any doubt in that
regard, Hairston’s statements on the record after sentencing resolve
the matter. Hairston explained to the district court that he was willing
to plead guilty to charges that exposed him to a minimum sentence
of thirty years because he believed that he would at least have a
chance of seeing his children again when he finished serving the sen-
tence. Hairston made it abundantly clear, however, that he would not
have pleaded guilty if he faced a minimum sentence of forty-five
years, because he feared that he would die before completing his
prison term and would not be reunited with his children. See J.A. 96
("Your Honor, I would not have signed a paper for 45 years. My kids
would never see me again. . . . I would never have signed for no 45
years."). Because the record establishes that Hairston would not have
pleaded guilty if he had known that he faced a mandatory fifteen-year
sentence on the § 922(g) charges, the Rule 11 error cannot be dis-
missed as harmless. See Dominguez Benitez, 542 U.S. at 83.
We turn now to the question of remedy. If a court determines that
a non-harmless Rule 11 error occurred, the typical remedy is to vacate
the conviction and guilty plea and remand, to give the defendant the
UNITED STATES v. HAIRSTON 9
4
opportunity to "plead anew." Thorne, 153 F.3d at 134; accord Goins,
51 F.3d at 405; see also United States v. Tunning, 69 F.3d 107, 115
(6th Cir. 1995) ("In a case where the error involves the defendant’s
state of mind, such as when the district court failed to determine that
the defendant was competent and voluntarily entering a guilty plea,
the appropriate remedy is to vacate the plea and remand so that the
defendant can plead anew."); United States v. Allen, 804 F.2d 244,
248 (3d Cir. 1986) (explaining that if the Rule 11 error relates to the
district court’s obligation to determine the voluntariness of the plea,
the defendant is entitled to plead anew). That is the relief Hairston
seeks in this case. He argues that under Goins, we must vacate his
convictions and his guilty pleas as to all counts so that he may re-
evaluate his options in light of the forty-five-year minimum sentence
he faces and decide whether to plead guilty or proceed to trial. The
government, however, suggests that because the Rule 11 error
occurred only with regard to the § 922(g) counts, we should vacate
Hairston’s guilty plea as to those counts only. See United States v.
Still, 102 F.3d 118, 123 (5th Cir. 1996).
Although we do not foreclose the possibility that the government’s
proposed remedy might be appropriate in another case, we believe the
interplay between the § 922(g) and § 924(c) charges and sentences
makes the government’s proposed remedy inadequate here. Because
the § 924(c) charges carried with them sentences of five years and
twenty-five years that by statute had to be served consecutively to
each other and to any sentence imposed for the § 922(g) charges, the
total length of Hairston’s sentence depended on the sentence imposed
on the § 922(g) charges. Hairston thus could not make an informed
decision about whether to plead guilty or go to trial on the § 924(c)
charges without knowing the likely sentence for the § 922(g) charges.
See United States v. Herndon, 7 F.3d 55, 58 (5th Cir. 1993) (per
curiam) ("[W]here the minimum mandatory sentence, of which the
4
If the Rule 11 deficiency involves the district court’s obligation to sat-
isfy itself that there is a factual basis for the guilty plea, our approach is
to vacate the conviction (but not the guilty plea) and remand to permit
the government to establish the factual basis for the plea. See United
States v. Carr, 271 F.3d 172, 181 (4th Cir. 2001). If the district court
determines that a factual basis exists, the court may reinstate the judg-
ment of conviction. See id.
10 UNITED STATES v. HAIRSTON
defendant was not informed, constitutes a substantial portion of the
actual sentence ultimately determined to be applicable under the
guidelines, we think there is a significant possibility that awareness
of such minimum would have affected the defendant’s decision to
plead guilty. . . . [A] statutory minimum necessarily colors the evalua-
tion by a defendant and his counsel of his potential sentence, because
it inherently sets a minimum below which a sentence determined by
the guidelines cannot go."). Accordingly, while the Rule 11 error
itself may have been limited to the district court’s explanation of the
§ 922(g) charges, the effect of that error extended to Hairston’s evalu-
ation of the risks of pleading guilty to the § 924(c) charges.
Vacating the guilty pleas as to the § 922(g) charges only would
correct the Rule 11 error, but it would not fully cure the prejudicial
effect of the error. Cf. Dominguez Benitez, 542 U.S. at 81 (explaining
that, except for certain structural errors, "relief for error is tied in
some way to prejudicial effect"). Under the circumstances of this
case, we decline to apply a remedy that leaves so much unremedied.
Instead, we conclude that the proper course in this case is to vacate
Hairston’s guilty plea and convictions as to all counts, so that Hairs-
ton will have an opportunity to make a fully informed evaluation of
"the direct attendant risks of accepting criminal responsibility."
Thorne, 153 F.3d at 133 (internal quotation marks omitted); see also
United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997) ("The main
thrust of [Rule 11] is to ensure that a defendant who pleads guilty
does so with full comprehension of the specific attributes of the
charge and the possible consequences of the plea.").
III.
Accordingly, for the foregoing reasons, we hereby vacate Hairs-
ton’s guilty plea and conviction as to all counts, and we remand for
further proceedings consistent with this opinion.5
VACATED AND REMANDED
5
We have considered Hairston’s other challenges to his conviction and
sentence and find them to be without merit.