NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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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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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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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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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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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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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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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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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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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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(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. 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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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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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.
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