IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30768
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
CHRISTOPHER GERRARDO HARDY,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
(92-CR-20012-2)
September 25, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
Per Curiam*
In this direct criminal appeal, Defendant-Appellant
Christopher Gerrardo Hardy complains that a misstatement by the
district court during the sentencing colloquy for his guilty plea
— specifically, erroneously informing him that he was subject to a
mandatory minimum sentence of only half the actual mandatory
minimum prison time that he actually faced — affected his
substantial rights by influencing him not to withdraw his plea of
*
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opinion should not be published and is not precedent except under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.
guilty and thereby causing him to incur an excessive term of
incarceration. Agreeing with Hardy that the district court
violated Fed. R. Crim. P. 11 in significantly understating the
mandatory minimum prison term that Hardy would incur if he
persisted with his guilty plea, and that such violation affected
Hardy’s substantial rights and was not harmless error — as conceded
on appeal by the government — we vacate Hardy’s guilty plea, his
conviction thereon, and the sentence he incurred by virtue thereof,
and remand this case for further consistent proceedings.
I.
FACTS AND PROCEEDINGS
Hardy was charged with conspiracy to distribute marijuana and
possession with intent to distribute marijuana, in violation of 18
U.S.C. §§ 841(a)(1) and 846. The government filed an enhancement
information under 21 U.S.C. § 851(a), alleging that Hardy had a
prior conviction.
Hardy entered into a written plea agreement pursuant to which
he would plead guilty to the conspiracy count of the indictment.
After the plea agreement was signed, a presentence report (PSR) was
prepared. The PSR ultimately recommended a guideline sentence of
240 months based on the statutory minimum sentence resulting from
the government’s filing of an information seeking an enhanced
penalty based on Hardy’s prior conviction. The district court
sentenced Hardy to the mandatory minimum 240 months of
imprisonment.
Hardy did not file a direct appeal but eventually filed a
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
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sentence by a person in federal custody. Hardy was granted leave
to file an out-of-time direct appeal, which led to his filing of
this appeal.2
II.
ANALYSIS
Hardy entered a guilty plea pursuant to Fed. R. Crim. P. 11.
A guilty plea involves the waiver of several constitutional rights
and, accordingly, must be made knowingly and voluntarily. Boykin
v. Alabama, 395 U.S. 238, 242-44 (1969). “Rule 11 creates a
prophylactic scheme designed to insure both that guilty pleas are
constitutionally made and that a full record will be available in
the event that a challenge is made to the plea.” United States v.
Bernal, 861 F.2d 434, 436 (5th Cir. 1988) (internal quotations and
citations omitted). In analyzing the validity of a guilty plea, we
conduct a two-step inquiry focusing on: (1) whether the district
court varied from the procedures required by Rule 11; and (2) if
so, whether such variance affected the “substantial rights” of the
defendant. United States v. Johnson, 1 F.3d 296, 298 (5th Cir.
1993) (en banc).
At the plea proceeding, Hardy was questioned extensively by
the district court. The court informed Hardy that any false
answers could lead to a criminal charge of perjury, see Fed. R.
Crim. P. 11(c)(5); determined that Hardy was mentally competent and
not under the influence of any drugs, and that he was satisfied
2
Hardy’s appointed counsel filed a motion to withdraw under
Anders v. California, 386 U.S. 738 (1987), but this motion was
denied.
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with his legal representation, see Fed. R. Crim. P. 11(c)(2);
informed him that he had the right to plead not guilty, to be tried
by a jury with the assistance of counsel, and to confront witnesses
against him, and that he could not be compelled to incriminate
himself, see Fed. R. Crim. P. 11(c)(3) and (4); and determined that
Hardy was not entering a plea because he was promised anything or
because he had been coerced, and that there was a plea agreement,
see Fed. R. Crim. P. 11(d). The government presented a factual
basis to support the plea, see Fed. R. Crim. P. 11(f). The
district court also explained the nature of the charge to Hardy,
informed him of the maximum possible penalty, advised him that he
would be sentenced pursuant to the guidelines, see Fed. R. Crim. P.
11(c)(1), and informed him of the mandatory minimum sentence that
he faced.
Unfortunately, the district court mistakenly told Hardy that
he was subject to a 10-year rather than the 20-year mandatory
minimum sentence by virtue of the enhancement information. This
clearly constituted a “variance” under Rule 11. Therefore, under
the approach dictated by our en banc opinion in Johnson, we must
determine, on the bases of the particular circumstances of the
case, whether the Rule 11 error affected the defendant’s
“substantial rights” and, if so, whether the error was harmless.
In the instant case we are guided by our holding in United
States v. Still, 102 F.3d 118 (5th Cir. 1996), cert. denied 118 S.
Ct. 43 (1997), in which on virtually identical facts we concluded
that the sentencing court’s understatement of the mandatory minimum
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sentence constituted reversible error. In Still, as in United
States v. Watch, 7 F.3d 422 (5th Cir. 1993)(implicating court’s
total failure to advise defendant of the mandatory minimum
sentence), we reasoned that the defendant did not fully understand
the consequences of his guilty plea and therefore his substantial
rights were affected. Still, 102 F.3d at 122-23; Watch, 7 F.3d at
424.
We did not conclude in Still, however, and do not today, that
failure of the district court to inform the defendant correctly as
to the mandatory minimum sentence can never be harmless error; only
that substantially understating the length of the applicable
mandatory minimum sentence will always have a substantial effect on
his decision to plead guilty. See Still, 102 F.3d at 122-23.
Moreover, the government concedes this point on appeal and does not
oppose the vacating of Hardy’s guilty plea. In light of this
situation, we need not and therefore do not address the substance
of any of the sentencing issues implicated by this case. Rather,
we vacate Hardy’s plea of guilty, the conviction based on it, and
the sentence imposed by the district court, and we remand for
further proceedings consistent with this opinion.
Plea, conviction, and sentence VACATED, and case REMANDED.
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