(concurring specially):
In Case No. 1768, Nathaniel Brown pleaded not guilty and was tried before a jury. The jury found him guilty and assessed his punishment at confinement in the State penitentiary for twenty-five years. He was represented by counsel appointed some eleven days before his trial. The district court, after a full hearing, held that Brown had the effective assistance of counsel. That finding is not, I think, clearly erroneous. Brown has failed to carry his burden of showing that his twenty-five year sentence in No. 1768 is constitutionally invalid.
I do not agree that it was premature for the district court to determine that question or that it is not necessary for this Court to review that determination. Such a review would not be necessary if Brown's subsequent thirty-five year sentence under his plea of guilty in Case No. 1767 were sustained and if the earlier twenty-five year sentence did not operate as an inducing cause to the later thirty-five year sentence. Realistically considered, however, the two sentences were closely related. Before the district court Brown testified to the following occurrences just after the first sentence was imposed:
“A. After the D. A. turned and walked away, five or ten minutes later he came back and my lawyer came back and he said, ‘You have 25 years already and why not cop out for this ease’.
“Q. Okay. By ‘cop out’, you took that to mean plead guilty?
“A. Yes, sir.
“Q. Trade out with the State for some sentence?
“A. Yes, sir.
“Q. What inducement did he suggest to you? Why did he think that was such a keen idea?
“A. He said, ‘You already have 25 years, why take a chance on your life?’
“Q. What were you to get if you copped out?
“A. Thirty-five years, which was 10' years more than I already had.”
The only other witness to testify orally before the district court was Arthur Crowell, counsel who had represented Brown by appointment in both cases. Mr. Crowell neither confirmed nor denied the correctness of the quoted part of Brown’s testimony, but only testified that it was possible:
“Q. Is it possible that you advised Brown that he had received a 25-year sentence on his jury trial case and therefore that it would be perhaps in his interest to consider pleading guilty to the other *959charge and try to get a 25-year sentence to run concurrently with the first one?
“A. It is possible. I do not recall whether I discussed it in those terms or not. I am sure in discussing a plea of guilty that is one of the considerations that would have been discussed, but I do not recall exactly what transpired with regard to that.”
The evidence is thus without substantial conflict that the earlier twenty-five year sentence in No. 1768 was a real inducement to Brown to plead guilty and accept a thirty-five year sentence in No. 1767. I do not understand the reluctance of my brothers to pass on the constitutional validity of the earlier sentence.1 The record before this Court fails, in my opinion, to show any constitutional invalidity of the twenty-five year sentence.
Nor do I see any occasion in this case to again discuss the conflict of views as to what precautions must be exercised before accepting a plea of guilty induced by a prosecutor’s promise.2 My views are still the same as those which Judge Brown and I entertained in Shelton v. United States, 5 Cir.1957, 242 F.2d 101, on en banc rehearing, 246 F.2d 571, reversed per curiam on the Solicitor General’s confession of error, 1958, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579. Among other views which we expressed, as the majority on original hearing (242 F.2d 113) and as dissenters on en banc rehearing (246 F.2d 578), is the following:
“If a plea of guilty is made upon any understanding or agreement as to the punishment to be recommended, it is essential, we think, that, before accepting such plea, the district court should make certain that the plea is in fact made voluntarily. Otherwise, the plea is subject to impeachment as having been induced by a promise of recommended leniency.”
Shelton centered about the requirements of Rule 11, Federal Rules of Criminal Procedure. That rule was amended February 28, 1966, effective July 1,1966, so as to require the court to address the defendant personally to determine whether the plea of guilty is made voluntarily and with understanding of the nature of the charge. A new sentence was also added at the end of the rule that, “The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” Of course, Rule 11 may go beyond the constitutional duty resting on a state court in a criminal case. Assuming however, that the constitutional duty is as exacting as that imposed by Rule 11, the-state trial judge in this case exercised every possible precaution and the proceedings before him, as quoted in the majority opinion, may well serve as a model for other courts. The judge questioned the defendant personálly to determine-that his plea of guilty was made because he was guilty and not because of any hope of reward or leniency. He advised, the defendant that the ultimate decision: as to the punishment to be imposed rested with the Judge. The judge then inquired into the factual basis for the plea. After a full recital of the facts relating to the robbery and of the defendant’s confession, the state trial judge again *960examined the defendant as to whether he heard the statement of facts, did what the statement said, whether his confession was voluntary, and whether he was pleading guilty because he was guilty.
To repeat, there is no need to discuss the conflict of views as to precautions to be exercised before accepting a plea of guilty made upon an understanding as to punishment, because the state trial judge wisely exercised every conceivable precaution in this case.
I therefore concur specially.
. Under the circumstances of this case, if the twenty-five year sentence was held constitutionally invalid, I would vote to remand for further consideration of the validity of the later thirty-five year sentence.
. Admittedly I would welcome a Gideon-like trumpet call from the Supreme Court to transfer so much of the practical administration of criminal justice from the bargaining table to the courtroom. I recognize, however, the widespread prevalence of plea bargaining. In discussing “The Negotiated Plea of Guilty,” the recent monumental report of the President’s Commission on Law Enforcement and Administration of Justice begins (p. 134): “Most defendants who are convicted — as many as 90 percent in some jurisdictions — are not tried. They plead guilty, often as the result of negotiations about the charge or the sentence.” The most that can be accomplished at the lower court level is to improve the present practice.