UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARENCE DAKIM KEBREAU,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00222-RJC-CH-l)
Submitted: October 20, 2008 Decided: November 25, 2008
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Kebreau pled guilty, without a plea agreement,
to two counts of possessing a firearm after having been convicted
of a felony, in violation of 18 U.S.C. § 922(g) (2006). At
Kebreau’s guilty plea hearing, the court reviewed the first count
of the indictment and related penalties, noting that “in certain
limited instances where the Defendant has a long prior criminal
record and is considered an armed career criminal, the maximum
penalty for this offense could be as much as not less than 15
years, nor more than life imprisonment, a $250,000 fine or both.”
The court then asked both Kebreau’s attorney and the government’s
attorney about their positions on the applicability of the armed
career criminal statute. Both counsel stated that, in their
opinions, it did not apply. The court then went on to review the
second count of the indictment (also charging a violation of
§ 922(g)), but did not mention the possibility of an enhanced
sentence. The court accepted Kebreau’s guilty plea.
Contrary to the parties’ beliefs expressed at the guilty
plea hearing, the presentence report (PSR) recommended that Kebreau
be sentenced as an armed career criminal based on two prior crimes
of violence and one prior controlled substance offense. See 18
U.S.C. § 924(e) (2006). Kebreau wrote several letters to the
district court, voicing his objection to the armed career criminal
enhancement and clearly indicating that he would not have agreed to
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plead guilty had he known he would be sentenced as an armed career
criminal. Construing Kebreau’s letters as both a motion to
withdraw his guilty plea and objections to the PSR, the district
court denied both. The court sentenced Kebreau to 180 months
imprisonment. Kebreau noted a timely appeal.
Kebreau’s only argument on appeal is that his plea was
not knowing and voluntary because the district court failed to
adequately advise him of the mandatory minimum sentence he faced.
In light of our decision in United States v. Hairston, 522 F.3d 336
(4th Cir. 2008), we agree.
Rule 11 requires that, prior to accepting a guilty plea,
a district court must, among other things, explain to the defendant
the nature of the charge to which he is pleading guilty, the
maximum penalty he faces, as well as “any mandatory minimum
penalty.” Fed. R. Crim. P. 11(b)(1)(I). In Hairston, the
defendant was indicted on sixty-two counts of various drug and
firearms offenses. The defendant and the government entered into
a plea agreement in which the government dismissed six of the
charges in exchange for Hairston’s guilty plea to the remaining
counts. The plea agreement was silent as to the armed career
criminal enhancement and no mention was made of it at the Rule 11
hearing. However, the PSR determined that Hairston should be
sentenced as an armed career criminal, a “determination that
greatly affected the minimum sentence Hairston faced.” Id. at 338.
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Hairston sought to withdraw his guilty plea on the grounds that, if
he had known of the higher mandatory minimum sentence, he would
never have agreed to plead guilty.
We held that “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 possibility and
explain to Hairston the sentence that would be applicable if he had
prior qualifying convictions.” Id. at 340. We noted that
although, as in this case, 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.” Id. at 340 n.3 (citation omitted). Because
Hairston, like Kebreau, preserved the Rule 11 issue by seeking to
withdraw his guilty plea, we went on to find that the government
failed to meet its burden of proving that the error was harmless.
We find that the facts of this case are sufficiently
similar to the facts in Hairston. Although in this case the
district court at least mentioned the possibility of an enhanced
sentence, Kebreau was led to reasonably believe that the
enhancement would not apply to him.
Accordingly, we vacate Kebreau’s conviction and guilty
plea and remand to the district court to give him the opportunity
to plead anew. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED
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