UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4232
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WAYNE A. PIERCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
( October 14, 1993 )
Before WISDOM, JOLLY and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
A member of the court having requested that the mandate for
the original panel opinion, dated December 29, 1992, be withheld,
the court now on its own motion withdraws such opinion and
substitutes this opinion in lieu thereof.
In this case we decide whether the district court's failure to
inform the defendant when he entered his guilty plea that the
maximum sentence he could receive would include an additional
mandatory sentence under 18 U.S.C. § 3147 violated Rule 11 of the
Federal Rules of Criminal Procedure. We hold that under our recent
en banc decision in United States v. Johnson, No. 92-8057 (5th Cir.
Aug. 26, 1993), the court's less than perfect compliance with the
rule is excused under the harmless error standard of Rule 11(h).
We therefore affirm Pierce's conviction and sentence.
I. BACKGROUND
Appellant, Wayne A. Pierce, is a former Grand Dragon of the Ku
Klux Klan in Louisiana. On November 19, 1990, the government
charged Pierce in a one-count indictment with felony possession of
a firearm in violation of 18 U.S.C. § 922(g). The same day, Pierce
was arraigned and released on bond. Before being released, Pierce
signed a written notice advising him that he would be subject to an
enhanced penalty if he committed another offense while on release.
A jury found Pierce guilty on February 4, 1991, but he remained on
bond status until May 7 when the court ordered him to begin serving
his sentence.
While on release, Pierce and other members of the Klan planned
to burn several crosses on the day Pierce began serving his firearm
possession sentence. The evening after Pierce entered prison, his
co-defendants burned crosses at nine different locations in
Louisiana. As a result of the cross-burning, the government
indicted Pierce and his co-defendants on the following charges:
Count 1: Conspiracy to interfere with federal rights in
violation of 18 U.S.C. § 241;
Count 2: Use of fire in the commission of a felony in
violation of 18 U.S.C. §844(h);
Count 3: Interference by force or threat of force with fair
housing rights in violation of 42 U.S.C. § 3631(a);
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Counts 4 and 5: Interference by force or threat of force with
public schooling in violation of 18 U.S.C. §
245(b)(2)(A); and
Count 6: Conspiracy to make a false declaration in violation
of 18 U.S.C. § 1623.
On December 4, 1991, Pierce entered into a plea agreement in
which he agreed to plead guilty to Counts One, Three, Four, Five
and Six. The district court held a Rule 11 hearing and informed
the defendant that the maximum total period of incarceration the
court could impose was 18 years. Sentencing was set for February
21, 1992.
On January 31, 1992, the government filed an Application for
Sentence Enhancement for committing offenses while on release
status under U.S.S.G § 2J1.7 and 18 U.S.C. § 3147. The effect of
these enhancement provisions was to increase the maximum total
period of incarceration the court could impose from 18 years to 28
years. See 18 U.S.C. § 3147(1). Pierce was not made aware of this
enhancement either in the plea agreement or at the plea hearing.
On February 21, 1992, the district court sentenced Pierce to
60 months of incarceration on counts one and six of the indictment
and 12 months on counts three four and five, all to run
concurrently. Pursuant to 18 U.S.C. § 3147(1), the court sentenced
the defendant to an additional 12 months for committing an offense
while on release status, giving the defendant a total effective
sentence of 72 months.
Pierce appeals, claiming that his guilty plea was involuntary
because the district court understated the maximum sentence he
could receive in violation of Rule 11 of the Federal Rules of
3
Criminal Procedure. He argues that, as a result, he should be
allowed to plead anew.
II. DISCUSSION
The relevant portions of Rule 11 reads as follows:
(c) Advice to Defendant. Before accepting the a plea of
guilty or nolo contendere, the court must address the
defendant in open court and inform the defendant of, and
determine that the defendant 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; . . .
. . .
(h) Harmless Error. Any variance from the procedures
required by this rule which does not affect substantial rights
shall be disregarded.
Prior to our en banc decision in Johnson, this court employed
a two step analysis in determining whether a district court's
failure to admonish a defendant in accordance with Rule 11
warranted an automatic reversal. We first determined whether the
failure affected a "core concern" under Rule 11, and if so, we
classified the district court's failure as either total or partial.
Thus, if the district court totally failed to address a core
concern under Rule 11, the error warranted automatic reversal.
Our en banc decision in Johnson has "chucked" that two step
inquiry and now applies a harmless error analysis across the board.
Johnson, slip op. at 6422. The inquiry now is: (1) did the
sentencing court vary from the procedures required by Rule 11, and
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(2) if so, did such variance affect substantial rights of the
defendant? Id. at 6418. To determine whether the error affected
substantial rights, we focus on whether the defendant's knowledge
and comprehension of the full and correct information would have
been likely to affect the defendant's willingness to plead guilty.
Id. at 6423.
Applying this inquiry to the facts here, we conclude that the
court varied from the procedures required by Rule 11 when it failed
to advise Pierce of the maximum penalty to which he was subject
after application of the enhancement provisions. After the
government requested enhancement, the court should have held
another hearing and informed Pierce of the requested enhancement
and its effect. Failing to do so was error.1
Having found the error, the next question is whether it was
harmless. To make this determination, we "'examine the facts and
circumstances of the . . . case to see if the district court's
flawed compliance with . . . Rule 11 . . . may reasonably be viewed
as having been a material factor affecting [Pierce]'s decision to
plead guilty.'" Id. (quoting Fed. R. Crim. P. 11 (advisory
committee notes to 1983 amendment)). We conclude that the court's
failure to inform Pierce of the enhancement cannot be so viewed.
1
We note that the district court would not have found itself
in this position were it not for the conduct of the prosecution in
waiting to request an enhancement until after the court had held
Pierce's Rule 11 hearing.
5
These facts present a prototypical case of harmless error.2
Here, the sentencing court informed Pierce during the Rule 11
colloquy that his maximum possible prison time was 18 years. Based
on this understanding of a "worst case scenario," Pierce made the
decision to plead guilty. And rather than having this scenario
realized, Pierce was actually sentenced to six years, a sentence
well below the 18 year period of which the court had made him
aware. Clearly Pierce has not been harmed.
Moreover, the fact that his true "worst case scenario" was
actually worse than he was informed would not have reasonably
caused Pierce to doubt the wisdom of his plea. To the contrary,
logic and reason would weigh this factor in favor of his decision
to plead guilty: if Pierce was willing to plead guilty when facing
what he believed was an 18 year maximum, would he not have been
just as willing if had he known that the maximum was 28 years?
III. CONCLUSION
Thus, we hold that "the nature and extent of the deviation
from Rule 11 was such that it could not have had any impact on the
2
It is noteworthy that the advisory committee notes to the
1983 amendment to Rule 11 adopting section (h) cite United States
v. Peters, No. 77-1700 (4th Cir., Dec. 22, 1978), as being
"illustrative" of cases to which harmless error applies. In
Peters, the defendant was advised that he might receive a sentence
of fifteen years plus a special parole term of at least three
years; the defendant was not advised of the maximum number of years
of the mandatory special parole term. At sentencing, the defendant
received a sentence of fifteen years plus a special parole term of
three years. The defendant appealed, arguing that the court had
violated Rule 11 by failing to advise him of the maximum number of
years that might be imposed as a special parole term. The Fourth
Circuit affirmed the sentence, concluding that any error was
harmless because his actual sentence did not exceed that indicated
in the district court's warnings.
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defendant's decision to plead or the fairness in now holding him to
his plea." Fed. R. Crim. P. 11 (advisory committee notes to 1983
amendment). Having so held, Pierce's conviction and sentence are
AFFIRMED.
E. GRADY JOLLY, Circuit Judge dissenting:
I respectfully dissent because the majority's overgeneralized
analysis fails completely to focus on what Supreme Court precedent
clearly dictates is the central issue involved in this case: the
voluntary nature of Pierce's guilty plea. See Brady v. United
States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747
(1970). The majority opinion holds the district court's Rule 11
error to be "harmless" because: (1) Pierce ultimately received less
than the 18-year maximum sentence that the district court informed
him of at the Rule 11 hearing; and (2) the 20-year increase in
Pierce's potential maximum sentence caused by the post-hoc 18
U.S.C. § 3147 enhancement would not constitute a material factor
affecting his decision to plead guilty. With all due respect, the
majority's analysis could not be more flawed when it effectively
says that a defendant can enter, as a matter of law, a voluntary,
knowing, and intelligent plea of guilty when the actual peril faced
by the defendant was more than twice as great as he was told by the
district court at the time he entered his plea. The effect of the
c:br:opin:92-4232p.3cf 7
majority's holding is that when a defendant is sentenced to a term
less than the maximum sentence of which he is advised, the failure
to inform the defendant of the actual maximum sentence he faces is
always harmless error. I do not believe that is the law, nor do I
believe that is what Johnson holds.3 Accordingly, I would remand
so that Pierce could receive another Rule 11 hearing in which the
3
United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993),
provides that our harmless error analysis must focus on:
[W]hether [the defendant's] knowledge and comprehension
of the full and correct information would have been
likely to affect the defendant's willingness to plead
guilty.
This language correctly requires focus on the voluntary nature of
the defendant's decision at the time he enters his plea, i.e., on
the information the defendant possessed when he pled guilty.
Curiously, Johnson, at 298, further provides, that in determining
the voluntariness of a plea we may consider the "sentence actually
imposed" on the defendant although the sentence is always imposed
sometime after the entry of the plea. Only in the rare instance in
which the defendant knows of the actual sentence to be imposed
prior to making his plea will the actual sentence inform the court
about the defendant's knowledge when he entered the plea. Johnson
then states that we should consider the ultimate sentence to
determine the validity of the plea when it is:
[T]emporally relevant to the voluntary and uncoerced
nature of the defendant's guilty plea, and to his
knowledge and understanding of the nature of the charges
against him and the consequences of his plea.
Id. (emphasis added).
With all due respect, I find this observation, especially the words
"temporally relevant" somewhat confusing, unless the words refer
only to the time period before the defendant enters his plea. The
actual sentence imposed, perhaps, could be relevant, but not
temporally so, to the reasonableness of a projected guidelines
range that the district court informed the defendant of at the Rule
11 hearing. Here, however, the district court did not inform
Pierce of any projected guidelines range and thus, the actual
sentence imposed cannot be relevant in any sense to the
voluntariness of Pierce's plea entered some months prior to the
district court's imposition of the actual sentence.
district court would inform him of the actual statutory maximum
sentence of 38 years. This would enable pierce to enter a
voluntary plea within the plain meaning of Rule 11 and the
unambiguous mandate of Supreme Court precedent.
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