REVISED - February 20, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERTO GUTIERREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(L-99-CR-500-1)
February 13, 2001
Before GARWOOD, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Roberto Gutierrez appeals his conviction after a guilty plea
for possession with intent to distribute approximately 180 pounds
of marijuana in violation of 21 U.S.C. § 841(b)(1)(C). We
affirm.
*
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this opinion should not be published and is not precedent except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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FACTS AND PROCEDURAL HISTORY
The Government entered into a plea agreement with Gutierrez,
agreeing to recommend that he receive a three-level acceptance-
of-responsibility decrease to his offense level and that he be
sentenced at offense level 21. The presentence report (“PSR”)
determined that, because of Gutierrez’s criminal history, his
offense level was 32 under the Sentencing Guidelines’ career-
offender provision. See U.S.S.G. § 4B1.1(C). With the three-
level adjustment for acceptance of responsibility, the PSR
recommended that Gutierrez be sentenced at level 29. Gutierrez
filed objections requesting a downward departure based on
U.S.S.G. § 5K1.1 or a mitigating role adjustment pursuant to
U.S.S.G. § 3B1.2.
Gutierrez was sentenced within the Guidelines range for
offense level 29 and criminal history category VI (151-188
months). He received a sentence of 156 months’ imprisonment,
three years’ supervised release, and a special assessment of
$100. He timely filed a notice of appeal.
DISCUSSION
Gutierrez argues that his plea was not knowingly and
voluntarily entered and that the Government breached the plea
agreement. He contends that his plea was based upon the
Government’s promise that it would make a meaningful
recommendation to the court to sentence him for a total offense
level of 21.
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A. Rule 11 variances
Gutierrez argues that the failure to admonish him that he
could not withdraw his plea if the court did not follow the
agreement constituted a FED. R. CRIM. P. 11 violation. Gutierrez
contends that the district court committed other Rule 11 errors
when it failed 1) to admonish Gutierrez that the court had to
consider the Sentencing Guidelines but that it could depart from
them, 2) to inquire whether the plea was voluntary and not the
result of threats or promises apart from those in the plea
agreement, and 3) to ensure that there was a factual basis for
the plea. Gutierrez maintains the district court’s Rule 11
errors were not harmless given the totality of the errors.
Because a guilty plea involves the waiver of several
constitutional rights, it must be entered knowingly and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
The voluntariness of a defendant’s guilty plea is reviewed de
novo. United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997).
Rule 11 sets forth certain procedures for the district court to
follow to ensure that a guilty plea is made voluntarily and
knowingly. When the defendant alleges that the district court’s
compliance with Rule 11 was flawed, this court employs a two-part
harmless-error analysis: “(1) [d]id the [district] court in fact
vary from the procedures required by Rule 11, and (2) if so, did
such variance affect substantial rights of the defendant?”
United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en
banc); see also United States v. Henry, 113 F.3d 37, 40 (5th Cir.
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1997). To evaluate the second prong, this court determines if
“the district court’s flawed compliance with . . . Rule 11 . . .
may reasonably be viewed as having been a material factor
affecting [the defendant]’s decision to plead guilty.” Id. at
302 (internal quotation marks and citation omitted).
The district court need not follow a strict Rule 11 script
when conducting its colloquy for the plea to be voluntary and
knowing. Henry, 113 F.3d at 42. “A plea of guilty entered by
one fully aware of the direct consequences, including the actual
value of any commitments made to him by the court, prosecutor, or
his own counsel, must stand unless induced by threats . . . [or]
misrepresentation (including unfulfilled or unfulfillable
promises). . .” Id. at 41 (internal quotation marks and
citations omitted).
The district court conducted a plea hearing for Gutierrez
and four other defendants. The district court advised the
defendants that they had the right to have an attorney present
during all proceedings and that false answers during the hearing
could subject them to a perjury charge. The court ensured that
each of the defendants wanted to plead guilty and that each
defendant was competent to do so. The court informed the
defendants that they had the right to a jury trial, to cross-
examine witnesses, to testify or not to testify, and to call
witnesses. The district court then asked Gutierrez if he was
satisfied with his attorney. Gutierrez responded: “I can’t be
too satisfied, but I’m going along with the recommendation.”
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While addressing the other defendants, who were charged with
transporting illegal aliens, the district court stated that the
maximum penalty was not more than five years’ imprisonment and
that, although the plea agreement called for a much lower
penalty, the court “was not bound by it, but the guidelines do
shape the sentence [the court] can issue.” The prosecutor then
described the maximum sentence for Gutierrez, which was zero to
twenty years’ imprisonment, a fine of not more than $1,000, a
special assessment of $100, and a supervised release term of not
more than three years. The district court determined that
Gutierrez had signed the plea agreement and gave all the
defendants a chance to change their pleas, which none of them
did. No further admonishments were given.
The district court did not 1) inform Gutierrez that it was
required to consider the Sentencing Guidelines but that it could
depart from them; 2) establish that there was a factual basis for
the plea; or 3) specifically ask Gutierrez whether the plea was
not the result of threats or promises apart from the plea
agreement. See Rule 11(c)(1) (requiring admonishment about the
Sentencing Guidelines); 11(f) (requiring a factual basis for the
plea); 11(d) (requiring determination that plea is voluntary and
not forced or induced). Nor did the district court address the
terms of the plea agreement; inform Gutierrez that the court was
not bound by the agreement; or explain that, if the court did not
accept the agreement, Gutierrez could not withdraw his plea. See
Rule 11(e)(2) (requiring the disclosure of the agreement on the
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record and notice to the defendant that, if the court does not
accept the agreement, he may not withdraw his plea).
We conclude that the district court varied from the
procedures required by Rule 11 and therefore go on to consider
whether each of the district court’s Rule 11 omissions was
harmless error. First, because Gutierrez was sentenced within
the Sentencing Guidelines range as calculated in the PSR,
informing Gutierrez about the district court’s ability to depart
from the Guidelines range probably would have had no effect on
his desire to plead guilty. Second, although the district court
did not specifically ask if Gutierrez was entering his plea free
from any threats, inducements, or promises apart from those in
the plea agreement, Gutierrez does not indicate that he was
threatened or induced by promises other than those in the plea
agreement to plead guilty. This Rule 11 omission also probably
did not affect his plea.
Third, although the district court did not determine whether
there was a factual basis at the plea hearing, Gutierrez
explained the details of the offense to the probation officer who
prepared the PSR. We have indicated “that evidence adduced after
the acceptance of a guilty plea, but before or at sentencing, may
provide the factual basis of the plea, and that such evidence may
be sufficient to sustain a plea on direct appeal.” United States
v. Dyer, 136 F.3d 417, 424 n.13 (5th Cir. 1998). We find that
Gutierrez’s statements describing the offense to the probation
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officer before sentencing was a sufficient factual basis for the
plea. See id.
With respect to the district court’s failure to inform
Gutierrez that the court did not have to accept the plea
agreement and that he could not withdraw his plea if such
occurred, we note that Gutierrez was present when the court
explained to the other defendants that the court was not bound by
their plea agreements. Furthermore, Gutierrez’s argument that he
pleaded guilty based upon the plea agreement’s provision that the
Government would recommend an offense level of 21 is largely a
claim that he pleaded guilty based upon an expectation of the
length of his sentence. We have held that, when a defendant has
been properly informed of the maximum sentence he faced, he may
not argue that his plea was involuntary because of “his reliance
upon misinformation from both prosecution and defense counsel
about the likely period of incarceration.” United States v.
Garcia, 983 F.2d 625, 629 (5th Cir. 1993).
Additionally, all of the above-described Rule 11
requirements, including the agreement’s nonbinding effect on the
court, were addressed in the written plea agreement. Gutierrez
signed the agreement and acknowledged that he signed it at the
plea hearing. While relevant, that does not end our inquiry
because the court did not ask whether Gutierrez had read and
understood the agreement. See United States v. Portillo, 18 F.3d
290, 292-93 (5th Cir. 1994) (holding that waiver-of-appeal
provision in plea agreement is not enforceable unless the record
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reflects, at a minimum, that the defendant has read and
understood the agreement).
In United States v. Thibodeaux, 811 F.2d 847, 847-48 (5th
Cir. 1987), we held as harmless error the district court’s
failure to explain that the defendant could not withdraw his plea
if the district court did not accept the plea agreement, which
contained a recommended sentence. We conclude that the district
court’s variance from Rule 11 requirements were harmless error in
the present case as well. First, Gutierrez was present while the
district court explained the non-binding nature of a plea
agreement to the other defendants in the same plea hearing.
Second, Gutierrez’s signature on the plea agreement that
contained all the necessary admonitions makes it likely that he
had all the information necessary to make an informed decision.
Third, the focus of his complaint on appeal is that he entered a
guilty plea without realizing that he was subject to the career-
offender provisions of the Sentencing Guidelines. Even if the
district court had conducted a perfect Rule 11 plea hearing,
Gutierrez would not have learned about this issue until after the
PSR was prepared. We therefore hold that the Rule 11 violations
were harmless error.
B. Breach of Plea Agreement
When a breach-of-the-plea-agreement issue is raised for the
first time on appeal, we review it for plain error. United
States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996). Under
FED. R. CRIM. P. 52(b), we may correct forfeited errors only when
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the appellant shows that there was an error, which was clear or
obvious, and which affected his substantial rights. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (citing United States v. Olano, 507 U.S. 725, 730-36
(1993)). If these factors are established, the decision to
correct the forfeited error is within our discretion, and we will
not exercise that discretion unless the error seriously affects
the fairness, integrity, or public reputation of the judicial
proceedings. Olano, 507 U.S. at 736.
At the sentencing hearing and in his objections to the PSR,
Gutierrez argued that being sentenced at level 29, when the
prosecutor had promised to recommend that he be sentenced at
level 21, constituted an excessive punishment in violation of the
Eighth Amendment. He did not argue that the plea agreement had
been breached. We thus review this issue for plain error.
"[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).
To assess whether a plea agreement has been violated, we consider
"whether the government's conduct is consistent with the
defendant's reasonable understanding of the agreement." United
States v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999) (internal
quotation marks and citation omitted).
The prosecutor, while addressing Gutierrez’s Eighth
Amendment argument, stated that, although the Government agreed
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to recommend that Gutierrez be sentenced at level 21, the
prosecutor was “unaware [at the time the Government entered the
plea agreement] of the full extent of the criminal history, . . .
did not realize he would qualify for the enhancement in Section
4B,” and did not believe that the enhancement was discretionary.2
The prosecutor noted that she believed the PSR, with its
recommendation of level 29, was correct, but stated that, “we are
bound by our recommendation in the plea agreement. And so we’re
in sort of an awkward position of saying, ‘[w]e must recommend a
Level 21, based on the plea agreement.’”
The prosecutor then noted that, because Gutierrez was three
points over the minimum required for criminal history category
VI, she could have asked for an upward departure. The court and
the prosecutor also noted that an offense level of 21 was not
available at the time of the plea agreement given that Gutierrez
had to be sentenced as a career offender.
In two direct appeals in which the Government argued a
position at sentencing which was in direct conflict with the plea
agreement, we determined that the Government had breached the
plea agreement and, in one case, that the breach amounted to
plain error. See United States v. Valencia, 985 F.2d 758, 760-61
2
The prosecutor advised the court at sentencing, “[w]e just
didn’t have all the information to verify that he was going to
qualify for a criminal – as a career criminal” but did not offer
any explanation as to why she did not ascertain the extent of
Gutierrez’s criminal history until the PSR was prepared. The
Government does not argue that Gutierrez bore any fault in the
Government’s failure to take his criminal history into account
during the plea negotiations.
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(5th Cir. 1993); United States v. Goldfaden, 959 F.2d 1324, 1328-
1329 (5th Cir. 1992). In Valencia, the Government stipulated in
the plea agreement that the defendant had accepted responsibility
for his actions in the plea agreement, but at sentencing argued
that the defendant did not demonstrate remorse and was not
entitled to any credit for acceptance of responsibility.
Valencia, 985 F.2d at 760. The defendant immediately objected
that the Government had breached the plea agreement. Id. The
court determined that the Government argued the opposite of its
position in the plea agreement in plain violation of the language
of the plea agreement and that the error was not harmless. Id.
at 761.
In Goldfaden, the Government had agreed to make no
recommendation as to the defendant’s sentence; however, at the
sentencing hearing, the Government argued that certain Guidelines
provisions were applicable. Goldfaden, 959 F.2d at 1328-29.
Under plain-error review, we determined that the Government’s
recommendations about Guidelines levels were the same as
recommendations about the defendant’s sentence. Id. at 1328-29.
Much like Goldfaden, wherein the prosecutor sought to
distinguish between making a sentencing recommendation and a
recommendation of what Guidelines provisions applied, the
prosecutor here initially recommended that Gutierrez be sentenced
at level 21, but went on to argue that the district court was
precluded from following that recommendation and was required to
sentence Gutierrez at level 29 because the career offender
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provisions of the Sentencing Guidelines are mandatory. See
U.S.S.G. § 4B1.1; see also Goldfaden, 959 F.2d at 1328-29.
Moreover, the prosecutor discussed the court’s option to depart
upward based on Gutierrez’s criminal history points.
We conclude that the Government breached the plea agreement
and that the breach amounts to plain error. The Government’s
violation of commitments made to Gutierrez in the plea agreement
may have resulted from sloppy preparation or a disingenuous
prosecutor. Either way, such a breach affects the fairness,
integrity, and public reputation of the judicial proceedings.
Olano, 507 U.S. at 736. However, Gutierrez’s criminal history is
not in dispute and it would be a waste of judicial resources to
remand this case for resentencing, given the mandatory nature of
the Guidelines provision in question. We therefore decline to
correct the plain error in this case.
CONCLUSION
Based on the foregoing, we affirm Gutierrez’s conviction and
sentence.
AFFIRMED.
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