IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-8057
_____________________________
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
_________________________________________________
(August 26, 1993)
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, GARZA, and DEMOSS,
Circuit Judges.
WIENER, Circuit Judge:
We have taken this case en banc for the "housekeeping" purpose
of deciding whether to complete the process we began two years ago
with our en banc opinion in United States v. Bachynsky.1 There, we
eliminated the panel's per se reversal of the defendant's
conviction for failure of the district court to make reference to
or explain supervised release during the plea colloquy. We instead
tested the effect of that omission by conducting a "harmless error"
examination as authorized by Federal Rule of Criminal Procedure
1
934 F.2d 1349 (5th Cir.) (en banc), cert. denied,
112 S.Ct. 402 (1991).
11's section (h), which was added to that Rule with the 1983
amendments. In so doing, however, we failed to repudiate our pre-
amendment, jurisprudentially mandated taxonomy exercise of
determining whether the plea colloquy error complained of should be
categorized as a failure by the court to comply with one or more of
the three "core concerns" of Rule 11,2 and if so whether such
failure was total or partial.
Today we acknowledge that in Bachynsky we went only halfway
when we approved application of section (h)'s harmless error test
to an imperfection in the plea colloquy, all the while continuing
to embrace the pre-section (h) rubric of total or partial failures
and core or non-core concerns. We now go the remaining "half the
distance to the goal" of fully embracing section (h) by relegating
that pre-amendment double dichotomy "into the dustbin of [the
jurisprudential] history"3 of this circuit, replacing it entirely
with the pure harmless error examination that was intended by
adoption of section (h).4 Henceforth, no failure in the plea
2
See United States v. Dayton, 604 F.2d 931, 939 (1979)
("Where each of Rule 11's core inquiries ["absence of coercion,
understanding of the accusation, and knowledge of the direct
consequences of the plea"] has been reasonably implicated in the
rule's required colloquy, we will examine its treatment to
determine whether it has been sufficiently exposed to inquiry and
determination.").
3
Leon Trotsky (Lev Davidovich Bronstein), History of the
Russian Revolution (1933), Vol. 3, Ch. 10; see also Augustin
Burrill, Obiter Dicta (1884) "Carlyle" ("that great dust heap
called `history.'").
4
In so doing we join other circuits that have taken the
same position. See e.g. United States v. Peden, 872 F.2d 1303,
1309 (7th Cir. 1989); United States v. Vance, 868 F.2d 1167, 1172
(10th Cir. 1989).
2
colloquy))regardless of whether it might be one of omission or
commission, total or partial, core or non-core))will mandate an
automatic reversal of a conviction and vacatur of a sentence.
Rather, reversal and vacatur will be required when))but only
when))the challenged "variance from the procedures required by
[Rule 11] . . . affect[s] substantial rights" of the defendant.5
In other words, when an appellant claims that a district court has
failed to comply with Rule 11, we shall conduct a straightforward,
two-question "harmless error" analysis: (1) Did the sentencing
court in fact vary from the procedures required by Rule 11, and (2)
if so, did such variance affect substantial rights of the
defendant?
We shall conduct our review of each Rule 11 challenge solely
on the basis of the record on appeal))principally the transcript of
the plea colloquy hearing but also other portions of the record,
such as any written plea agreement, the transcript of the
sentencing hearing, and the sentence actually imposed.6 When we
review post-plea colloquy sources, however, we shall consider only
such information contained therein as is temporally relevant to the
5
FED. R. CRIM. P. 11(h).
6
See Notes of Advisory Committee on Rules, 1983 Amendment,
Rule 11(h). Unlike the position we take today, as taken
previously by some other circuits (see n.4 supra), there are
circuits that appear to restrict harmless error review to the
plea hearing transcript. See e.g. United States v. Hourihan, 936
F.2d 508, 511 (11th Cir. 1991); United States v. Young, 927 F.2d
1060, 1062 (8th Cir.), cert. denied, 112 S.Ct. 384 (1991); United
States v. Goldberg, 862 F.2d 101, 105 (6th Cir. 1988); United
States v. Jaramillo-Suarez, 857 F.2d 1368, 1369-70 (9th Cir.
1988); United States v. Daniels, 821 F.2d 76, 80 (1st Cir. 1987).
3
voluntary and uncoerced nature of the defendant's guilty plea, and
to his knowledge and understanding of the nature of the charges and
the consequences of his plea.
Finally, overarching the rule and the review procedure we
announce today is our solemn admonition that nothing in this
opinion should be construed as condoning even the slightest
diminution in the degree of diligence that the district courts of
this circuit are expected to devote to complying fully with both
the letter and the spirit of Rule 11 in every instance.
I
FACTS
Defendant-Appellant Michael Anthony Johnson pleaded guilty to
one count of distribution of cocaine within 1,000 feet of a school
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). During the Rule 11 plea
colloquy,7 the district court informed Johnson of the maximum
statutory penalty and supervised release term,8 but neglected to
advise him that 21 U.S.C. § 860(a) carries a mandatory minimum
penalty of one year imprisonment. Just before the district court
accepted the plea, Johnson's attorney intervened to place his own
7
See FED. R. CRIM. P. 11.
8
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 . . . ."
4
dialogue with Johnson on the record.9 After Johnson acknowledged
that he had been informed by counsel that Johnson would be subject
to a sentence enhancement 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 years 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 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.
The district court accepted Johnson's plea. After receipt of
the Pre-Sentence Report (PSR), the court sentenced Johnson to 210
months imprisonment))over four years less than the shortest term
that he had acknowledged (when he entered his plea) he was
expecting to receive.10 Johnson nevertheless appealed his sentence,
arguing that the district court's failure to mention the mandatory
minimum sentence of one year during the Rule 11 colloquy mandates
vacatur, as such an omission could never be harmless error under
9
Johnson is illiterate, and his attorney sought to make a
thorough record of what he had explained to Johnson.
10
983 F.2d at 34. A term of 210 months was at the bottom
of the guideline range that was calculated in the PSR. Johnson
was also sentenced to six years supervised release, an aspect of
his sentence not at issue here.
5
our precedent.11 The panel of this court that heard Johnson's
appeal recognized that it was bound by United States v.
Martirosian12 and dutifully vacated Johnson's conviction and
sentence, remanding the case to allow Johnson to plead anew.
II
ANALYSIS
A. Rule 11 and Our Interpretation
Rule 11 of the Federal Rules of Criminal Procedure provides:
(c) Advice to Defendant. Before accepting a plea of guilty
or nolo contendere, the court must address the defendant
personally 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 or any special parole or supervised
release term, the fact that the court is required to
consider any applicable sentencing guidelines but may
depart from those 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.
This court has long analyzed Rule 11 as addressing three "core
concerns": (1) whether the guilty plea was coerced; (2) whether
the defendant understands the nature of the charges; and (3)
11
United States v. Martirosian, 967 F.2d 1036, 1039 (5th
Cir. 1992)(holding that "the 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").
12
Id.
6
whether the defendant understands the consequences of his plea.13
Under our extant jurisprudence, a conviction on a plea of guilty is
reversible ipso facto if, during the plea colloquy with the
defendant, the trial court wholly or entirely "fail[s] to address
one or more of the core requirements of Rule 11."14 Thus, we have
said that automatic reversal required two elements: (1) a total
failure to address (2) a core concern. In contrast, when a trial
court has addressed a core concern inadequately or in a "less than
letter perfect manner," or when a non-core concern was left totally
unaddressed, we have reviewed the plea colloquy "under the harmless
error standard of Rule 11(h) to determine whether the court's
imperfection affected substantial rights of the defendant."15
Until now, however, upon finding that a district court had
made an error in a Rule 11 colloquy, our initial inquiry was: Are
we faced with a total failure to address a core concern, which will
mandate vacatur, or only with some lesser error or omission, which
we review for harmless error under section (h) of Rule 11? In
Bachynsky, for instance, the district court "informed [the
defendant] of the nature of the charges against him; stated the
elements of each of the crimes to which he was pleading guilty;
stated the maximum statutory penalty for each crime to which he was
13
Bachynsky, 934 F.2d at 1354; United States v. Bernal, 861
F.2d 434, 436 (5th Cir. 1988), cert. denied, 493 U.S. 872, 110
S.Ct. 203 (1989); United States v. Dayton, 604 F.2d 931, 939 (5th
Cir. 1979)(en banc), cert. denied, 445 U.S. 904 (1980).
14
United States v. Pierce, 893 F.2d 669, 679 (5th Cir.
1990).
15
Bachynsky, 934 F.2d at 1354.
7
pleading guilty; and then asked if he understood the elements and
penalties associated with each count." The trial court, however,
neglected "personally [to] advise Dr. Bachynsky that his sentence
could or would include a period of supervised release, or explain
to Dr. Bachynsky the effect of supervised release."16 That error
was reviewed for harmlessness, as the imperfection involved "only
one component [supervised release] of one element [the maximum
penalty for which the defendant was liable] of one core concern
[whether the defendant understands the consequences of his plea]."17
Despite the implication in Bachynsky that, except for a total
failure to address one of the three nominate core concerns of Rule
11, we would test all Rule 11 errors for harmlessness, panels of
this court have continued in the ensuing two years to take the per
se approach even as to partial failures or errors not affecting
entire core concerns. For example, in Martirosian the panel held
that a failure to mention the mandatory minimum sentence "'went to
the heart of'"18 the third "core concern"))i.e., whether the
defendant knew the consequences of his plea))and as such,
constituted "a complete failure to address a Rule 11 concern,
mandating that a plea be set aside."19 In the instant case, the
16
Id. at 1353.
17
Id. at 1355.
18
967 F.2d at 1039 (quoting Pierce, 893 F.2d at 679 and
discussing the 1974 amendments to FED. R. CRIM. P. 11).
19
Id.
8
district court, like the one in Martirosian, did not inform Johnson
of the statutory minimum sentence that had to be imposed. The
Johnson panel was therefore bound by stare decisis to follow
Martirosian's interpretation of Rule 11 vis-à-vis mandatory minimum
sentences and set aside Johnson's guilty plea without ever reaching
the question of harmless error. But in so doing, the members of
the Johnson panel implied, "loud and clear," just how they felt in
playing "Simon says" with a district court that neglected to
mention a twelve month mandatory minimum to a defendant who
acknowledged during the plea colloquy that he was facing a term of
incarceration more than twenty times the mandatory minimum! That
message was not lost on the other active judges of this court; we
voted to consider Johnson en banc.
B. Our "Core Concern" Analysis and the 1983 Amendment to Rule 11
In its en banc brief, the government argued that our current
framework of "complete failure/partial failure" of a "core
concern"))under which only errors deemed "partial failures" or
errors that do not "go to the heart of a core concern" are reviewed
for harmless error under Rule 11(h)))finds support in neither Rule
11(h)'s text nor the accompanying advisory committee notes. As we
today review a district court error that has been held to "go to
the heart of a core concern" (i.e., a total failure to address a
core concern), we are positioned to conduct a retrospective
examination of the phylogeny of our automatic reversal rule.20 When
we thus reflect upon this bit of Fifth Circuit history, we cannot
20
See Bachynsky, 934 F.2d at 1358.
9
help but agree with the government and proceed to discard our
automatic reversal analysis for the anachronism that it is))and
that it has been for a decade.
Section (h), which was added to Rule 11 by Congress in 1983,
provides that "[a]ny variance from the procedures required by this
rule which does not affect substantial rights shall be
disregarded."21 Nevertheless, our continued reliance on the "core
concern" analysis effectively preserved a privileged "teflon" class
of variances))total failures to address core concerns))that remained
exempt from any harmless error analysis. So, despite the advent of
section(h), these sacred cows of the plea colloquy survived and
continued to produce automatic vacatur. That approach arose in
pre-1983 cases22 and, we recognize today, should have been
supplanted by the 1983 addition of section (h) to Rule 11.
The advisory committee notes on section 11(h) make clear that
"the harmless error rule of Rule 52(a) is applicable to Rule 11."
Unmodified, that statement means fully applicable. According to
the committee notes, section (h) was added to Rule 11 in response
to the continuation by several courts to follow McCarthy v. United
States23 even after post-McCarthy amendments to Rule 11. Those
courts had declined to apply harmless error analyses to most if not
all Rule 11 errors. In McCarthy, which involved an appeal from a
21
(Emphasis added).
22
See McCarthy v. United States, 394 U.S. 459, 471-
72(1969); Dayton, 604 F.2d at 939-40.
23
394 U.S. 459 (1969).
10
guilty plea that was accepted following a plea hearing which was
flawed under Rule 11, the Supreme Court held
that prejudice inheres in a failure to comply with Rule
11, for noncompliance deprives the defendant of the
Rule's procedural safeguards that are designed to
facilitate a more accurate determination of the
voluntariness of his plea. Our holding [is] that a
defendant whose plea has been accepted in violation of
Rule 11 should be afforded the opportunity to plead anew
. . . .24
Concerning McCarthy's holding that any violation of Rule 11 created
reversible error, the advisory notes accompanying the 1983
amendment asserted that "[t]hough the McCarthy per se rule may have
been justified at the time and in the circumstances which obtained
when the plea in that case was taken, this is no longer the case."
The committee cited the expansions and modifications to Rule 11
that had occurred since McCarthy, and expressed its belief that
McCarthy, which involved a direct appeal, was actually directed at
habeas cases in order to justify the amendment to Rule 11, under
which all district court mistakes would be reviewed for harmless
error.
With the benefit of hindsight, we now see that this circuit's
approach has had the effect of setting aside certain types of
error))i.e., violations of "core concerns"))and retaining a "per se
reversible error" rule as to those mistakes, while applying the new
harmless error approach to others. Although we cast no aspersions
on our own retention of the pre-1983 vestige of the rule,25 we inter
24
Id. at 471-72.
25
It is difficult to imagine a situation in which the trial
court would neglect entirely to mention one of what were formerly
11
it now in favor of the more straight-forward approach of universal
application of Rule 11(h) harmless error analysis to review all
complaints of Rule 11 violation in which we find that an error was
made. Henceforth, if a mistake is made by the district court
during the Rule 11 colloquy, it shall be reviewed for harmless
error regardless of whether, under our prior system, the error or
omission would have been classified as either total or partial, or
would have been found to implicate either a core or non-core
concern.
C. Application of Harmless Error
We cannot over-emphasize that the application of the harmless
error analysis to all errors made in Rule 11 colloquy cannot be
viewed as in any way "nullifying important Rule 11 safeguards."26
In fact, the advisory committee notes stress that the "kinds of
Rule 11 violations which might be found to constitute harmless
error upon direct appeal are fairly limited."27 Even a casual
review of the voluminous jurisprudence on point, produced by the
several circuits during the decade since the adoption of Rule
11(h), demonstrates beyond peradventure that the admonition to
scrutinize errors made during Rule 11 colloquies closely has indeed
our "core concerns" and, in so doing, not "affect substantial
rights." Nevertheless, we give our prior analysis a ceremonious
"heave ho." Cf. Harper v. Virginia Dep't of Taxation, 61
U.S.L.W. 4664, 4670 (June 18, 1993)(Scalia, J., concurring).
26
FED. R. CRIM. P. 11 (advisory committee notes to 1983
amendment).
27
Id.; see Twenty-Second Annual Review of Criminal
Procedure, 81 GEO. L.J. 853, 1205 & n. 1398 (1993).
12
been taken to heart.
To determine whether a Rule 11 error is harmless (i.e.,
whether the error affects substantial rights), we focus on whether
his knowledge and comprehension of the full and correct information
would have been likely to affect the defendant's willingness to
plead guilty. Stated another way, 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 [defendant]'s decision
to plead guilty."28
In making this determination, we must bear in mind that the
issue "'must be resolved solely on the basis of the Rule 11
transcript' and the other portions (e.g., sentencing hearing) of
the limited record made in such cases."29 So, even though we are
free to examine the entire record on appeal, including
documentation that itself post-dates the plea hearing (such as the
pre-sentence investigation report, objections thereto by the
defendant, and the transcript of the sentencing hearing), we will
consider only those temporally relevant matters that are revealed
in the record. We shall not, for example, remand for further
factual findings on the issue of harmlessness. If information
known to or about the defendant, and his knowledge and
28
Bachynsky, 934 F.2d at 1360 (citing United States v.
Reyez-Ruiz, 868 F.2d 698, 703 (5th Cir. 1989)).
29
FED. R. CRIM. P. 11 (advisory committee notes to 1983
amendment) (emphasis added) (quoting United States v. Coronado,
554 F.2d 166, 170 n.5 (5th Cir. 1977)).
13
understanding, is not revealed by the record on appeal, such
information will not be factored in to our harmless error calculus.
In our review of the record to search for data that might
counteract a deficiency in a plea colloquy sufficiently to negate
harm, we shall not lose sight of the importance that Rule 11 places
on the role of the district court. In designating the district
judge as the one who must conduct the colloquy with the defendant
and determine that the requirements for accepting a plea exist,
Rule 11 recognizes the significance of the judge's imprimatur on
these proceedings. Therefore, before we accept other persons or
proceedings in substitution for the judge as the source of
information that must be known by or about the defendant, we shall
endeavor to ascertain that such alternate sources are clothed with
indicia of dignity, solemnity, and reliability sufficient to the
purposes of the rule.
When we apply these principles to the instant case, it is
absolutely clear that Johnson understood that he was facing a
sentencing range the low end of which was substantially greater
than the one year mandatory minimum. In his attorney's words,
Johnson was "going into this with [his] eyes wide open." As
recited above, the record demonstrates that Johnson understood that
the least incarceration he was likely to receive under the
guidelines was 21 years. Simply put, when a defendant is willing
to accept a plea bargain and enter a guilty plea with the
understanding that such plea is certain to produce a prison
sentence of not less than 21 years, there is no reasonable
14
probability that his possession of the additional knowledge that
there happens to be a one-year mandatory minimum penalty associated
with one of the crimes to which he is pleading could have affected
his decision thus to plead guilty.30 This is the kind of common
sense, logical analysis that hereafter we shall bring to bear in
reviewing Rule 11 errors for harmlessness.
Today we deal specifically with a mandatory minimum sentence;
in Bachynsky, it was supervised release. But the nature of the
particular error or the particular facet of the plea colloquy under
consideration is immaterial))it could just as easily be fines,
restitution, statutory maximums, sentence enhancement, promises and
forbearances, rights waived, coercion, or any other matter about
which a defendant is supposed to be informed and comprehend in
30
We stress that the determination of harmless error in
these cases is a fact sensitive inquiry, so our finding harmless
error under today's facts could well mean very little in the next
case involving an erroneously omitted mandatory minimum sentence.
For instance, in Martirosian, the trial court did not inform the
defendant of a mandatory minimum of five years under 21 U.S.C. §
841(b)(1)(B). It is not clear from the opinion what guideline
range Martirosian was looking at when he pleaded guilty, but he
received a sentence of 114 months (9½ years), which included a
"two-level upward adjustment for obstruction of justice" for
activity that occurred after the plea was taken. Martirosian,
967 F.2d at 1038. When, in a case such as Martirosian, a
mandatory minimum sentence is almost as large as the sentencing
guideline range, knowledge of that minimum may well be found
necessary for the defendant to understand his situation fully.
The failure to inform the defendant of such a mandatory minimum
sentence is thus much more likely to "affect substantial rights."
See also Bachynsky, 934 F.2d at 1361 (finding the omission of a
mandatory term of supervised release from a Rule 11 colloquy to
be harmless error, we stated nevertheless that "under
significantly less imposing facts and circumstances, we might
well find that a district court's failure to explain supervised
release does affect substantial interests of a defendant and thus
is not harmless error").
15
order to plead guilty validly.
III
CONCLUSION
We no longer recognize the existence of any category of error
in the Rule 11 proceeding that will mandate automatic reversal. To
the extent that any of our prior holdings are inconsistent with the
rule we here espouse, they are overruled.31 Henceforth, all Rule
11 errors or omissions shall be tested under the provisions of
section (h) in the manner discussed above. In so holding, we
stress that "[section] (h) makes no change in the responsibilities
of the judge at Rule 11 proceedings, but instead merely rejects the
extreme sanction of automatic reversal."32
In the instant case, the district court's variance from the
procedures set forth in Rule 11, i.e., its failure to inform
Johnson of a mandatory one-year period of incarceration, could not
reasonably be deemed to have affected Johnson's substantial
interests when viewed in light of all that Johnson knew and
understood about the probable length of his impending sentence. It
is clear from the record that there is simply no way that his
31
These include, without limitation, those per se plea
vacatur opinions rendered since our en banc opinion in United
States v. Bachynsky, 934 F.2d at 1349, e.g., United States v.
Martirosian, 957 F.2d at 1036 (failure to mention mandatory
minimum sentence); United States v. Pierce, No. 92-4232 (5th Cir.
Dec. 29, 1992) (unpublished) (failure to mention enhancement);
and United States v. Whyte, No. 92-4150 (5th Cir. Dec. 30, 1992)
(unpublished) (understatement of term of mandatory minimum
sentence).
32
FED. R. CRIM. P. 11 (advisory committee notes to the 1983
amendment).
16
failure to hear, from the judge's lips, that he (Johnson) was
subject to a one-year mandatory minimum period of imprisonment
could have possibly affected his decision to plead guilty.
Johnson's conviction is therefore
AFFIRMED.
17