IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8057
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(January 28, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Michael Anthony Johnson pled guilty to one count of
distribution of cocaine within 1,000 feet of a playground, in
violation of 21 U.S.C. §§ 841 (a) and 860 (a), and one count of
unauthorized acquisition and possession of food stamps, in
violation of 7 U.S.C. § 2024 (b). The district court accepted the
plea and sentenced Johnson to 210 months imprisonment and six years
supervised release.
During the plea colloquy, the district court did not advise
Johnson that 21 U.S.C. § 860 (a) carries a mandatory minimum
penalty of one year imprisonment as Fed. R. Crim. P. 11 (c) (1)
provides. On appeal Johnson contends that the court's failure to
comply with Rule 11 requires that his plea be set aside. We agree
and therefore vacate Johnson's sentence and conviction and remand
the case in order that he may replead.
I.
Rule 11 provides:
Before accepting a plea of guilty or nolo contendere, the
court must address the defendant personally in open court
and inform him of, and determine that he understands, the
following:
(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by law,
if any, and the maximum possible penalty provided by law,
including the effect of any special parole or supervised
release term, the fact that the court is required to
consider any applicable sentencing guidelines under some
circumstances, and when applicable, that the court may
also order the defendant to make restitution to any
victim of the offense.
Fed. R. Crim. P. 11 (c). During the plea colloquy, the district
court informed Johnson of the maximum penalty and supervised
release term, but omitted the mandatory minimum penalty of one year
imprisonment set out in 21 U.S.C. § 860 (a). The court stated:
"[The] maximum possible punishment that can be assessed against a
person convicted of that offense could be as many as 40 years of
incarceration, followed by at least six years and up to 10 years of
supervised release . . . ." Vol. II, at 20.
The government concedes that the district court did not comply
fully with Rule 11, but contends that its omission of the statutory
minimum penalty was harmless error. According to the government,
the court's mistake does not implicate the core concern that
defendants understand the consequences of their pleas, see, e.g.,
United States v. Adams, 961 F.2d 505, 510 (5th Cir. 1992); United
2
States v. Bachynsky, 934 F.2d 1349, 1354 (5th Cir.), cert. denied,
112 S.Ct. 402 (1991), for a review of the transcript of Johnson's
plea proceeding discloses his cognizance of the minimum prison term
he faced. Just before the district court was to accept the plea,
Johnson's counsel intervened, stating "I need to get something into
the record for Mr. Johnson." After Johnson agreed that counsel had
informed him that he would be subject to an enhanced sentence under
U.S.S.G. § 4B1.1 as a career offender, the following exchange took
place:
[Counsel]: Okay. And you understand that you're looking
in the neighborhood of 262 to 327 months, which is 21 to
27 years, under the Federal Sentencing Guidelines. You
understand that, do you not?
Defendant Johnson: Yes, sir.
[Counsel]: And understanding that and my explaining that
to you two days ago or three days ago and then again--and
then again today, do you still want to proceed with your
plea?
Defendant Johnson: Yes, sir.
[Counsel]: Okay. You understand what you're looking at
and you're going into this with your eyes wide open?
Defendant Johnson: Yes.
Vol II, at 53-54.
The government maintains that such clear evidence of
Johnson's understanding of his sentencing range under the
guidelines renders the district court's failure to inform him of
the statutory minimum sentence harmless error under Rule 11 (h).
This argument presupposes, however, that omissions of a mandatory
minimum penalty are susceptible to harmless error review. Our
precedents are to the contrary. In United States v. Martirosian,
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967 F.2d 1036, 1039 (5th Cir. 1992), we held that "[t]he failure to
advise Martirosian of the minimum mandatory sentence was a complete
failure to address a Rule 11 core concern, mandating that the plea
be set aside." Rule 11 (h) does not apply to plea terms such as a
mandatory minimum penalty. See also United States v. Pierce, No.
92-4232 (5th Cir. Dec. 29, 1992) (mistakes pertaining to maximum
sentence may not be reviewed for harmless error). Even where the
plea transcript amply demonstrates that a defendant has been
advised of, and appears to understand, the minimum and maximum
penalties, "we cannot, as urged by the government, review [the
district court's] omission for harmless error." Martirosian, 967
F.2d at 1039.
The government suggests that the presence of such manifest
evidence of Johnson's understanding of his sentence in the
transcript of the plea colloquy serves to distinguish this case
from Martirosian, where the only mention of the minimum sentence
occurred during a prior hearing. The argument implicit in this
proffered distinction--that harmless error review extends to all
plea terms but should be confined to the plea transcript--would
seem to find support in the notes accompanying the 1983 amendments
to Rule 11. Here, the advisory committee asserted that the new
harmless error provision would not threaten the integrity of
"important Rule 11 safeguards," for "the kinds of Rule 11
violations which might be found to constitute harmless error upon
direct appeal are fairly limited." Fed. R. Crim. P. 11 (h) advisory
committee's note (1983 amend.). The committee attributed the small
4
number of errors that might be held harmless not to the limited
application of 11 (h), but to the narrow scope of harmless error
review: "[T]he matter 'must be resolved solely on the basis of the
Rule 11 transcript' and other portions (e.g., sentencing hearing)
of the limited record made in such cases." Id. (quoting United
States v. Coronado, 554 F.2d 166, 170 n.5 (5th Cir.), cert. denied,
434 U.S. 870 (1977))).1
As persuasive as the government's reading of Rule 11 might be,
it has not been adopted by this Circuit. In United States v.
Bachynsky, 934 F.2d 1349 (5th Cir.) (en banc), cert. denied, 112
S.Ct. 402 (1991), the government offered a similar argument,
contending that "the adoption of 11 (h) . . . effectively
eliminated automatic reversal, even for a total failure to satisfy
core concerns of Rule 11." Id. at 1358. We noted that this
interpretation was "not unpersuasive[]," but postponed resolution
of this question until it was "squarely presented to this court."
Id. Until we revisit the issues left open in Bachynsky, the
holdings of prior panels control this panel's decision. Since the
district court's omission of the mandatory minimum sentence may not
be reviewed for harmless error, Martirosian, 967 F.2d at 1038, we
must vacate Johnson's sentence and conviction and remand the case
in order that he may replead.
1
For example, the committee indicated that a finding of
harmless error would be appropriate "where the judge's compliance
with subdivision (c) (1) was not absolutely complete, in that
some essential element of the crime was not mentioned, but the
defendant's responses clearly indicate his awareness of that
element." Fed. R. Crim. P. 11 (h) advisory committee's note
(1983 amend.) (citing Coronado, supra).
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VACATED and REMANDED.
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