United States Court of Appeals
For the First Circuit
No. 99-1899
UNITED STATES,
Appellee,
v.
JOSE SANTO a/k/a FEDERICO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Schwarzer,* Senior District Judge.
Jonathan R. Saxe with whom Twomey & Sisti Law Offices was
on brief for appellant.
Michael J. Pelgro, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, James B. Farmer,
Assistant United States Attorney, Chief, Criminal Division,
Stephen P. Heymann, Assistant United States Attorney, Deputy
Chief, Criminal Division, and Michael J. Pelgro, Assistant
United States Attorney, were on brief for appellee.
*Of the Northern District of California, sitting by
designation.
September 15, 2000
CAMPBELL, Senior Circuit Judge. Defendant-appellant
Jose Santo pled guilty to drug conspiracy and other charges
after being told -- incorrectly, as it turned out -- that he
faced a statutory mandatory minimum sentence of only five years.
Later, upon determining that Santo was responsible for more
drugs than was initially contemplated, the district court
sentenced him subject to the ten-year mandatory minimum
applicable to the greater drug quantity. Santo contends that
the court’s understatement of the mandatory minimum penalty
rendered his guilty plea involuntary, as the error both violated
an express provision of Fed. R. Crim. P. 11 requiring advice as
to the mandatory minimum penalty provided by law and also
affected his substantial rights. See Fed. R. Crim. P. 11(c)(1)
and (h). We agree, and allow Santo to withdraw his plea.
I.
On December 3, 1998, Santo and three co-defendants were
charged with conspiracy to distribute heroin, 21 U.S.C. § 846,
and the distribution of heroin, 21 U.S.C. § 841(a)(1). Santo
was also charged with making false statements to a federal law
enforcement officer, 18 U.S.C. § 1001, and making false
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statements in a passport application, 18 U.S.C. § 1542.
Thereafter, Santo signed a plea agreement with the United States
Attorney, in which he agreed to plead guilty to all the counts
against him in the indictment and admitted that he was, in fact,
guilty of each of these offenses.1
1The plea agreement was of the sort authorized by Fed. R.
Crim. P. Rule 11(e)(1)(B), under which the government’s
recommendation or request contained in the agreement does not
bind the court, and the defendant may not withdraw his plea
should the court decline to accept the government’s
recommendation or request. See Fed. R. Crim. P. 11(e)(2).
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A. The plea agreement
The plea agreement included a statement of Santo’s
mandatory minimum and maximum penalties. Count One, the
conspiracy charge, was said to have
a maximum of 40 years and a mandatory
minimum of 5 years, in federal prison
without parole, to be followed by a term of
supervised release of at least 4 years, a
fine of up to $2,000,000, and a special
assessment of $100,000.
The distribution counts were each said to provide, inter alia,
for a maximum of twenty years imprisonment, and the false
statement counts, inter alia, twenty years and five years
respectively.
The plea agreement went on to announce that the parties
“will take the following positions at sentencing under the
United States Sentencing Guidelines”:
The parties agree to take the position in
connection with the drug counts that Santo
is accountable for at least 100 grams of
heroin, that his Base Offense Level is 26
(100-400 grams of heroin), and the five year
minimum mandatory provision is applicable.
After reference to an agreed four-level upward adjustment for
being an organizer or leader under U.S.S.G. § 3B1.1(a), the
parties agreed to take the position that the “safety valve”
provision was inapplicable and that Santo’s adjusted offense
level on the drug counts was 30. The parties agreed to an
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adjusted offense level of 10 on the two false statements counts,
and to a possible three-level reduction for acceptance of
responsibility under U.S.S.G. § 3B1.1, subject to certain
conditions.
The plea agreement next contained a section entitled
“Sentence Recommendation,” which read as follows: “The U.S.
Attorney takes no position at this time concerning his sentence
recommendation before the district court . . .“ In this section
the parties agreed there was no basis for departure from the
range established by the sentencing guidelines, except possibly
for substantial assistance under U.S.S.G. § 5K1.1. The plea
agreement further provided:
7. Court Not Bound By Agreement
The sentencing recommendations made by the
parties and their respective calculations
under the Sentencing Guidelines are not
binding upon the U.S. Probation Office or
the sentencing judge. Within the maximum
sentence which Santo faces under the
applicable law, the sentence to be imposed
is within the sole discretion of the
sentencing judge. Santo’s plea will be
tendered pursuant to Fed. R. Crim. P.
11(e)(1)(B). Santo may not withdraw his
plea of guilty regardless of what sentence
is imposed. Nor may Santo withdraw his plea
because the U.S. probation office or the
sentencing judge declines to follow the
Sentencing Guidelines calculations or
recommendations of the parties.
B. The Rule 11 hearing
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On April 22, 1999, the district court conducted a
change of plea hearing pursuant to Fed. R. Crim. P. 11 for Santo
and one of his co-defendants. The parties filed the
abovementioned written plea agreement with the court. The
district court explained the nature of the charges and the
rights that Santo was giving up by pleading guilty. Santo, who
participated in the hearing via an interpreter, responded that
he understood.
Consistent with the plea agreement, the court told
Santo that he faced a mandatory minimum sentence of five years’
imprisonment and a maximum sentence of forty years:
Now let’s talk about what may happen here if
you plead guilty. When Congress passes a
law they pass a maximum possible sentence.
And the maximum sentence here for the crime
of distribution of heroin is twenty years in
prison . . . On the conspiracy charges,
because the government in your case, Mr.
Santo, says more drugs are attributable to
you, the maximum sentence is potentially
–well, the maximum sentence is, the maximum,
forty years in prison . . . and I have to
give you five years in prison, there’s a
mandatory minimum sentence.
[Emphasis supplied.] The court made no mention of the
possibility of a higher statutory mandatory minimum in the event
that a greater quantity of drugs was attributed to Santo.
Noting that Santo’s other charges could be sentenced
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consecutively, the court stated that it could add up all of his
charges to a maximum of 185 years, or life imprisonment.
The court then turned to the sentencing guidelines:
Now, I’ll ask Mr. Pelgro [the Assistant
United States Attorney] . . . what he thinks
the range is in each case. I turn to him
not because he governs the range, I’ll
figure out what the range is, but I’ll
listen to him, I’ll listen to your
attorneys, I’ll listen to you, I’ll listen
to the probation officer, but you need to
know that he thinks the range is because
probably he’s the person who is looking for
the most severe sentence.
[Emphasis supplied.] The government responded: [W]e believe
that Mr. Santo will come out, or we think he’ll come out at
total offense level 27 . . .” The government went on to state
that the guideline sentencing range was 87 to 108 months
(approximately seven to nine years), based on a criminal history
category of III. The court then addressed Santo:
Now, Mr. Santo, listening to Mr. Pelgro, he
says that the way he now calculates the
sentencing guidelines, you’re looking at a
minimum 87 months in prison and a maximum
108 months. Is that how you understand it?
Mr. Santo: Yes.
Shortly thereafter, the court stated:
In each case, gentlemen, you must understand
that I am no part of the plea bargain; that
I will impose the sentence I think is
appropriate under the law. I’m not agreeing
to go along with anything. I will follow
the law and impose what I think is an
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appropriate sentence. Do you understand
that, Mr. Santo?
Mr. Santo: Yes.
Santo stated that his plea was based on no inducements
other than the plea agreement. The district court found that
Santo knowingly, intelligently, and voluntarily exercised his
right to plead guilty. Before accepting Santo’s plea, the court
stated: “Understand, now, if you plead guilty there is no taking
it back or starting over.”
On or around June 28, 1999, the United States Probation
Office provided Santo’s counsel with a copy of the pre-sentence
report (PSR) pursuant to Fed. R. Crim. P. 32(b)(6)(A).
Probation found Santo responsible for 1000 to 6000 grams of
heroin, rather than the 100 to 400 grams contemplated in the
plea agreement and at the Rule 11 hearing. Pursuant to 21
U.S.C. §§ 841 and 846, these increased drug amounts raised
Santo’s mandatory penalties from five years minimum and forty
years maximum to ten years minimum and life maximum. In
addition, they raised Santo’s offense level to 33. See U.S.S.G.
§ 1B1.3. Applying a criminal history category of III, probation
recommended a sentence of 168 to 210 months, with a minimum
sentence of ten years and a maximum of life imprisonment.2 Santo
2At first, the PSR set forth a minimum sentence of five
years and a maximum of forty years. On July 27, 1999, that was
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did not then file any objections to the PSR or move to withdraw
his plea.
C. The sentencing hearing
On July 27, 1999, the district court held a sentencing
hearing. The court addressed the discrepancies between the PSR
and the plea agreement and Rule 11 discussion:
Let me put on the record the additional
matter. I don’t think this is going to
impact the sentencing process as we go
forward, but the record should be complete
and the probation officers have
appropriately advised me.
Upon the investigation post plea of the
probation department, it appears that the
quantity of drugs involved warrants a
statutory term of imprisonment of a minimum
of ten years and a maximum of life. At the
time of the plea, Mr. Santo was advised that
the maximum sentence he could face, if he
pleaded guilty, was 40 years in prison.
Therefore, I state, so everyone is clear on
it, if things eventuate such that justice
requires a sentence of more than 40 years,
without more, Mr. Santo will be entitled to
withdraw his plea and get his case in order
to stand for trial.
The court then grouped the various counts against Santo, applied
the upward and downward adjustments, and stated that the
sentencing range was 168 months to 210 months. The court asked
the government and Santo’s counsel if it had properly calculated
changed to a minimum sentence of ten years and a maximum of life
imprisonment.
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the sentence under the guidelines. Initially, Santo’s counsel
objected to the fact that the amount of drugs for which he was
responsible had been increased since his change of plea:
I have no problem with the calculations
based on the amount that’s estimated by
probation to be attributable to Mr. Santo.
The problem I have is that the plea
agreement was based on accounting only 100
grams to Mr. Santo’s activity. And his plea
and all the discussions and negotiations
were based on that level of a hundred grams
which would have started him at level 26 and
then done the adjustments. And that’s why,
again, I don’t question the math, but I
question the quantity that’s attributed to
him.
The district court acknowledged that a lesser drug quantity had
been negotiated, but stated that “[u]nder a sentencing
guidelines regime probation has done what it’s supposed to do
and has given me information that appears unchallenged, that the
drug quantity is substantially greater, and I’m, I’m disposed to
follow it.”
In response, Santo’s counsel stated:
Let me just, one issue I didn’t – with
respect to this changing of the minimum and
maximum, I did address that earlier with my
client and anticipating your Honor’s ruling
I told him that’s probably what’s going to
happen so I’m not worried about that aspect
of it. . . . So I know that it is not
written in stone, that it’s not something
the defendant can count on, but as a
practical matter that’s basically what he
was counting on was a range closer to that
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fully understanding that there’s a lot of
variables of things that won’t be known.
The district court responded that it was bound by the sentencing
guidelines and found that the drug quantities in the PSR were
accurate. It noted that Santo had preserved his rights with
respect to the court’s rulings and findings.
The government stated that it felt “bound to recommend
the low end of the guideline sentencing range, which is 168
months.” Santo did not seek to withdraw his guilty plea, but
rather asked to be sentenced at the low end of the range. The
district court sentenced Santo to 168 months (fourteen years)
incarceration.
II.
On appeal, Santo seeks to withdraw his plea. He
contends that the district court’s understatement of the
statutory mandatory minimum sentence (as five years, rather than
the ultimately applicable ten years) violated Rule 11(c)(1)’s
explicit requirement that the court advise the defendant of “the
mandatory minimum penalty provided by law, if any.” Santo
further argues that the court’s error affected his substantial
rights.3 See Fed. R. Crim. P. 11(h).
3
In the alternative, Santiago seeks resentencing on the
separate ground that the amount of drugs upon which his sentence
was based was unsupported. Since we reverse on the first
ground, we do not reach this point.
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Before addressing these contentions, we note that Santo
did not request to withdraw his guilty plea in the district
court. This omission, however, is not necessarily fatal where
a fundamental mistake in Rule 11 procedure is asserted.
Ordinarily, we deem an issue not raised
before the district court to be waived. We
will, however, determine compliance with
Rule 11, even if a claim of non-compliance
was not presented in the district court, if
the record is sufficiently developed, which
is generally the case because of Rule
11(g)'s requirement that the district court
make a complete record of the plea
proceedings.
United States v. Noriega-Millan, 110 F.3d 162, 166 (1st Cir.
1997); see also United States v. McDonald, 121 F.3d 7, 10 (1st
Cir. 1997).
This is not to say that a defendant’s failure to seek withdrawal
of his plea in the district court is immaterial. We have said,
and reiterate, that a defendant who has not sought relief below
"faces a high hurdle" on appeal, and must show that there was "a
substantial defect in the Rule 11 proceeding itself." United
States v. Miranda-Santiago, 96 F.3d 517, 522 (1st Cir. 1996);
see also Fed. R. Crim. P. 11(h) (providing that "[a]ny variance
from the procedures required by this rule which does not affect
substantial rights shall be disregarded").
A. The district court’s error
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Fed. R. Crim. P. 11(c)(1) provides that before
accepting a plea of guilty:
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 of 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 . . .
(Emphasis supplied.) Here, as to the most serious charge, drug
conspiracy, the government stated unequivocally in the plea
agreement that Santo faced a mandatory minimum sentence of five
years and a forty year maximum. The district court reiterated
those minimum and maximum figures at the Rule 11 hearing, again
without qualification or mention of the possibility of any
higher minimums and maximums should larger drug quantities be
found to be involved.
The problem the court faced was that the applicable
mandatory minimum provided in the statute depended on the amount
of heroin for which Santo was found responsible. While the
court was correct as to the mandatory minimum applicable to
Santo under the then-assumed amounts, it was wrong as to the
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mandatory minimum ultimately applicable given the subsequent
increase in drug quantity. The court no doubt assumed that the
government, if anyone, would know what amounts should be
factored into the statutory equation. At the Rule 11 hearing,
the district court based its unqualified statement to Santo of
the statutory minimum and maximum on the drug quantity provided
by the government (100 to 400 grams). As this court has noted,
district courts often rely on the government’s representations
regarding facts material to the sentence, but there can be risk
in so doing, as this case demonstrates:
One might expect that whatever the
complexity of the Sentencing Guidelines, it
would be easy accurately to advise the
defendant of the statutory penalties. But
as this case shows, the statutory penalties
themselves are sometimes complicated; the
defendant may be charged with multiple
counts; and the penalties may depend on
information . . . that is not automatically
available to the district judge at the time
of the plea. Accordingly, district judges
often rely heavily, although not
exclusively, on the prosecutor to provide
the court with a description of statutory
penalties or at least to advise the court if
it misstates the terms.
United States v. Raineri, 42 F.3d 36, 40 (1st Cir. 1994).
Where, as here, mandatory minimums and maximums depend
on drug quantity and drug quantity attribution is not finally
determined until after the plea process is completed, the court
is obviously in a tricky position when it comes to being able to
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accurately advise a defendant, as Rule 11 requires, of the
mandatory minimum and maximum penalties faced. See United
States v. Padilla, 23 F.3d 1220, 1223 (7th Cir. 1994). This
lack of certainty, however, does not relieve the court of its
Rule 11(c)(1) responsibility to correctly inform a defendant,
insofar as is possible, of those mandatory minimum and maximum
penalties applicable in his particular case. See id.; see also
United States v. Herndon, 7 F.3d 55, 58-59 (5th Cir. 1993).
The dissent contends that Rule 11's requirement was
adequately met merely by informing Santo of the five-year
mandatory minimum applicable to the lesser drug quantities
recommended by the government in the plea agreement, even though
the court later found greater quantities resulting in a
mandatory ten-year minimum and sentenced him accordingly.
However, advice as to a mandatory minimum that is no longer
relevant can hardly achieve Rule 11's purpose, which is to
advise a defendant of the actual consequences of his plea so
that he can realistically decide whether to plead guilty. See
McDonald, 121 F.3d at 11-12. Here, the rule governing Santo’s
plea specifically disallowed Santo from withdrawing the plea
notwithstanding the court’s rejection of the government’s
recommended drug quantities in favor of quantifies triggering a
doubled mandatory minimum. See Note 1, supra. Thus, knowledge
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only of the mandatory minimum attributable to quantities
recommended by the government could not educate Santo as to the
full array of possible consequences his plea might engender.
One way to ensure that a defendant is properly
informed, in the present circumstances, would be to advise as to
the different mandatory minimums and maximums that could apply,
depending on the quantity of drugs later attributed to the
defendant:
[A] prudent district judge hearing a plea
from a defendant charged under an indictment
or information alleging a § 841(a) violation
but containing no [or ambiguous] quantity
allegation[s should] simply walk a defendant
through the statutory minimum sentences
prescribed in § 841(b) explaining that a
mandatory minimum may be applicable and that
the sentence will be based on the quantity
of drugs found to have been involved in the
offense with which the defendant is
charged.” It is not costly in time or
effort to enumerate during the plea colloquy
the several mandatory penalties potentially
applicable when attributable drug quantities
are uncertain.
Padilla, 23 F.3d at 1224 (quoting United States v. Watch, 7 F.3d
422, 429 (5th Cir. 1993)).
Here, the district court announced minimum and maximum
penalties based exclusively on the drug quantity asserted at the
time by the government. Thus the court stated, “I have to give
you five years in prison, there’s a mandatory minimum sentence.”
It did not inform Santo that the statutory mandatory minimum and
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maximum sentences would change to ten years and life if Santo
were found responsible for a greater quantity of heroin.4 Hence,
as events turned out, the district court erred in informing
Santo of a mandatory minimum that was, in fact, only half as
long as that under the drug quantity later determined. See
Padilla, 23 F.3d at 1223; Herndon, 7 F.3d at 58-59.
We hold, therefore, that the court failed to comply
with the express provisions of Rule 11(c)(1) when it incorrectly
advised Santo as to the minimum and maximum penalties that
applied in his case. See McDonald, 121 F.3d at 11 (court failed
to mention mandatory minimum); United States v. Gray, 63 F.3d
57, 60 (lst Cir. 1995) (court stated that ten years was maximum
sentence, when it in fact was mandatory minimum); United States
v. Lopez-Pineda, 55 F.3d 693, 695-696 (1st Cir. 1995) (court
failed to mention mandatory minimum).
B. Impairment of substantial rights
Our determination that the district court erred in
failing to inform Santo of the correct, higher mandatory minimum
4
Although later in its colloquy the court was careful to
instruct that it was not bound by the sentencing guidelines, no
such cautionary statement accompanied its discussion of the
statutory mandatory minimum. Santo could have reasonably
believed, therefore, that while the contemplated guideline range
of 87 to 108 months was subject to change depending on the
court’s findings, the mandatory minimum would always be five
years.
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applicable in his case does not end matters, however. Fed. R.
Crim. P. 11(h) provides: "Any variance from the procedures
required by this rule which does not affect substantial rights
shall be disregarded.” A guilty plea should be set aside only
for errors that implicate the "core concerns" of Rule 11, which
include the defendant's knowledge of the consequences of the
guilty plea. See Noriega-Millan, 110 F.3d at 166; Gray, 63 F.3d
at 60. We review the totality of the circumstances surrounding
Santo’s Rule 11 hearing to ascertain whether his substantial
rights were affected by the error. See United States v.
Cotal-Crespo, 47 F.3d 1, 4-5 (lst Cir. 1995).
Regarding the court’s failure to tell Santo that he
might be maximally sentenced to life imprisonment, rather than
just forty years, the district court, on its own initiative,
sought to correct that error at the sentencing hearing by
stating that Santo could withdraw his plea if a sentence of more
than forty years were found to be required. Because Santo’s
actual sentence did not exceed fourteen years, the scenario
mentioned by the court did not arise. Santo does not contend on
appeal that the court’s Rule 11 misstatement concerning the
potential maximum was, in light of what transpired at
sentencing, other than harmless error.
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The more difficult question is the impact of the
misstated mandatory minimum of five years rather than ten years.
At the Rule 11 hearing, as in the written plea agreement, the
prosecution openly declared that Santo’s probable guideline
sentence was 87 to 108 months, or approximately seven to nine
years. Such a sentence was compatible with a five-year
mandatory minimum but would be barred by a ten-year mandatory
minimum. While Santo was advised that the court was not bound
by the government’s proposed sentencing range, he received no
intimation at the Rule 11 hearing that the 87 to 108 month range
was too low to be statutorily lawful under the mandatory minimum
that ultimately was found to apply in his case. Nor was he told
that there was any possibility that a higher mandatory minimum
might control. The question, then, is whether Santo can be said
to have understood the consequences of his plea given the
district court’s failure to call to his attention, as Rule 11
requires, the mandatory minimum that actually came to apply in
his case. We conclude that it is sufficiently likely that Santo
misjudged the consequences of his plea in light of the court’s
misinformation so that he must be allowed to withdraw his plea.
The present situation is not unlike that in United
States v. Hernandez-Wilson, 186 F.3d 1 (1st Cir. 1999). There,
as here, the defendant was not advised that the government’s
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calculated sentence was legally unsustainable. In Hernandez-
Wilson, the government recommended a thirty-month sentence on
the condition that the defendant comply with the requirements of
the “safety valve” provision, which would permit the court to
sentence him below the mandatory minimum. See id. at 2.
Unbeknownst to both parties as well as the district court at the
time the defendant entered his guilty plea, the safety valve
provision was not available due to the defendant’s criminal
history; hence, he had no possibility of receiving a sentence
less than the sixty-month mandatory minimum. See id. at 4. We
held that the defendant could have reasonably misunderstood the
consequences of his guilty plea, which affected his substantial
rights. We allowed him to withdraw his guilty plea despite his
failure to raise the issue below. See id. at 5.
The case of Raineri, 42 F.3d at 36, is also
instructive, even though, there, the district court’s error was
found harmless. In Raineri, the defendant was told that he
faced potential imprisonment of thirty-five years and a maximum
fine of $20,000. The parties and the court were apparently
unaware that the defendant’s criminal history subjected him
instead to a minimum sentence of twenty years and a maximum of
forty-five years, plus a maximum fine of $25,000. See id. at
40-41. The district court later sentenced him to ten years’
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imprisonment and ordered him to make restitution in the amount
of $5988. See id. at 40. Hence, the sentence the defendant
received (as well as the sentence discussed at the Rule 11
hearing) was shorter than the actual mandatory minimum. See id.
at 42. This court concluded that the defendant’s substantial
rights were not impaired by the misinformation, as there was “no
indication that the misinformation given to Raineri at the Rule
11 hearing led him to expect a lesser penalty than he actually
received.” Id.; see also McDonald, 121 F.3d at 11-12 (failure
to state mandatory minimum did not affect defendant’s
substantial rights where guideline sentencing range outstripped
applicable mandatory minimum and defendant could not have
reasonably hoped for shorter sentence).
Here, Santo reasonably could have expected from the
information given, including in particular the inaccurate five-
year minimum, that he might receive a significantly lighter
punishment than the fourteen-year sentence he eventually
received. Unlike McDonald, the government calculated a sentence
of 87 to 108 months at the Rule 11 hearing, well under the
undisclosed mandatory minimum of ten years. 5 It is true that
5The government argues that the district court’s error in
this case should be considered harmless, as in McDonald, because
Santo’s sentence was calculated under the guidelines, without
reference to the statutory mandatory minimum. We do not find
this convincing. As Rule 11 implicitly recognizes, the
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Santo would have no valid complaint to a longer guideline
sentence based on a higher drug quantity, but he was entitled to
know that a higher drug quantity might lead to a doubled
mandatory minimum that would remove any possible discretion the
court might have retained to give a sentence below ten years.
The district court may have inadvertently further encouraged
Santo’s expectations of a shorter sentence by stating that
“probably [the prosecutor]’s the person who is looking for the
most severe sentence,” suggesting that Santo might reasonably
anticipate a sentence no greater than the one being discussed.
In any case, there was no suggestion from the government or the
court that an increase in drug quantity, besides affecting
Santo’s guideline range, would pose an insurmountable statutory
bar to sentences within the range discussed at the Rule 11
hearing.
What occurred controverts the purpose behind Rule 11's
requirement that the district court inform a defendant of, and
determine that he understands, the applicable mandatory minimum
mandatory minimum may be relevant to the defendant’s
expectations regardless of the guideline sentencing range. See
McDonald, 121 F.3d at 11-12; see also Noriega-Millan, 110 F.3d
at 166. Moreover, the absence of prejudice in McDonald was
supported by the fact that the guideline range exceeded the
undisclosed mandatory minimum. As explained supra, this case
differs in that the stated guideline range was one to three
years shorter than the statutory mandatory minimum.
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sentence. That purpose is “to ensure that the defendant is not
induced to change his plea because of a totally unrealistic
expectation as to how mild a sentence he might receive.”
McDonald, 121 F.3d at 11-12; see also Noriega-Millan, 110 F.3d
at 166. The misinformation that the minimum sentence was only
five years reasonably could have affected Santo’s decision to
change his plea to guilty. Cf. Hernandez-Wilson, 186 F.3d at 6;
Gray, 63 F.3d at 61. Had he known that a ten-year mandatory
minimum might apply, so as to preclude the sentencing range
discussed at the Rule 11 hearing, his expectations might
conceivably have been lessened, along with his willingness to
plead. We conclude, therefore, that the district court’s
erroneous advice as to the mandatory minimum sentence affected
Santo’s substantial rights, and we hold that Santo must be
permitted to withdraw his plea. See Hernandez-Wilson, 186 F.3d
at 6; Gray, 63 F.3d at 61.
Reversed and remanded for further proceedings not
inconsistent with this opinion.
Dissent to follow.
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SCHWARZER, Senior District Judge, dissenting. I
respectfully dissent. This appeal presents two issues: (1) Did
the district court fail to comply with Rule 11; and (2) if it
did, did the error impair Santo’s substantial rights.
(1) Rule 11 states that “the court must . . . inform
the defendant of . . . the mandatory minimum penalty provided by
law, if any, and the maximum possible penalty provided by law.
. . .” Fed. R. Crim. P. 11(c)(1). The district judge informed
Santo at the plea hearing that the mandatory minimum sentence
was five years. He did so on the basis of the information
provided in the plea agreement. The agreement stated that the
relevant Count One carried a mandatory minimum of five years.
It further stated that the “parties agree to take the position
in connection with the drug counts that Santo is accountable for
at least 100 grams of heroin . . . and the five year minimum
mandatory provision is applicable.” Slip op. *(3). Because it
had no information raising the possibility of a higher minimum
sentence, the court did what the rule required.
The majority holds that “the court failed to comply
with the express provisions of Rule 11(c)(1) when it incorrectly
advised Santo as to the minimum penalties that applied in his
case.” Slip op. *(14). In considering that holding, it is
critical to appreciate what this case does and does not involve.
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This is not a case in which, at the time of the plea, the drug
quantity was undetermined, nor is this a case in which the judge
failed altogether to advise the defendant of the applicable
mandatory minimum. The “minimum penalties that applied in his
case” as of the time of the Rule 11 colloquy were those that
applied to the drug quantity on which defendant and the
government had agreed in the plea bargain that was before the
court when it took the plea. Slip op. *(3). That the Probation
Department subsequently increased the drug quantity attributed
to Santo, recommending a ten-year mandatory minimum, does not
retroactively infect what the district court did with error.
The majority treats this as a case in which the drug
quantity attribution is not finally determined until after the
plea process is completed. Slip op. *(12). In such a case of
“lack of certainty,” the district court must inform the
defendant of the different mandatory maximums and minimums that
could apply. Slip op. *(13). The majority quotes from United
States v. Watch, 7 F.3d 422 (5th Cir. 1993), in which the court
said that “a prudent district judge hearing a plea from a
defendant charged under an indictment or information alleging a
§ 841(a) violation but containing no quantity allegation may
simply walk a defendant through the statutory minimum sentences
prescribed in § 841(b) explaining that a mandatory minimum may
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be applicable and that the sentence will be based on the
quantity of drugs [attributed to the defendant].” Id. at 429
(emphasis added). In the instant case, of course, the
government had informed the court at the plea hearing of the
quantity attributed to defendant. And the court’s statement in
Watch is dictum because the conviction was vacated on the ground
that the court did not inform defendant of any mandatory minimum
sentence. See id. at 428 n.5. Similarly, in United States v.
Herndon, 7 F.3d 55 (5th Cir. 1993), and United States v. Padilla,
23 F.3d 1220 (7th Cir. 1994), reiterating the Watch dictum, the
convictions were reversed because the court had failed to inform
the defendant of any applicable mandatory minimum sentence. See
Herndon, 7 F.3d at 56; Padilla, 23 F.3d at 1222 n.2.
But this is not such a case. Here, the drug quantities
attributed to Santo had been determined by the plea agreement.
A careful and reasonable district judge cannot be expected to
warn the defendant that the Probation Department might change
its mind later and report a larger drug quantity at sentencing.
What the district court does at the Rule 11 hearing must be
judged, not with the benefit of hindsight but by the state of
affairs at the time. To require the district court in a case
such as the one before us to inform a defendant of all the
different mandatory minimums and maximums not only is not
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required by Rule 11 but also would seem to confuse rather than
help the defendant.
There is no authority for the proposition that the
district court’s failure to inform a defendant that a greater
quantity of drugs might be attributed to him at sentencing than
what the government had committed to in the plea agreement,
bringing into play higher mandatory minimums, constitutes
reversible error, nor can such a requirement be read into Rule
11(c)(1).
Indeed, to require district judges to inform defendants
of all the different mandatory minimums will undermine the
purpose of Rule 11(c) to ensure defendants will make informed
decisions. It will also work to the prejudice of future
defendants (even if it helps Santo in this case). That is
because a defendant in Santo’s position, who entered a plea in
reliance on the plea agreement, would have a basis for moving to
withdraw his plea at sentencing if the PSR at that point
increased the drug quantity over what the government had
represented in the agreement--not because the court is bound by
the sentence contemplated by the agreement (which it is not
under Rule 11(e)(1)(C)) but because the government has
established the factual basis for the plea. If, on the other
hand, a defendant at the plea colloquy is told that
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notwithstanding the terms of his plea agreement, a greater
minimum sentence may apply than what the agreement provided for,
he has no ground for complaint if the PSR later states a drug
quantity exceeding that specified in the plea bargain.
(2) Assuming nonetheless that the district court erred,
the question is whether the error impaired Santo’s substantial
rights. The majority holds that “it is sufficiently likely that
Santo misjudged the consequences of his plea in light of the
court’s misinformation so that he must be allowed to withdraw
his plea.” Slip op. *(16). As noted above, the information
Santo received at the time of the plea was correct; it was only
by reason of a subsequent unforeseen development that the
factors controlling his sentence changed. In any event, United
States v. McDonald, 121 F.3d 7 (1 st Cir. 1997), is
indistinguishable from the instant case. The court there held:
In the case at hand, the error did not impair the
appellant’s substantial rights. The court imposed a
sentence of 135 months– fifteen months longer than the
mandatory minimum–and calculated that sentence without
any reference to the mandatory minimum. It is,
therefore, readily apparent that because the guideline
sentencing range (at its nadir) outstripped the
mandatory minimum, the latter had no relevance to, and
no actual effect upon, the appellant’s sentence.
Consequently, the district court’s failure to apprise
the appellant of the mandatory minimum was an error
that did no discernible harm.
Id. at 11. So here, the district court performed the guideline
calculation without reference to the mandatory minimum, arriving
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at an offense level of 33 which, given Santo’s criminal history
category III, resulted in a guideline range of 168-210 months.
As in McDonald, the bottom of the range “outstripped” the ten-
year mandatory minimum.
The majority notes that at the plea hearing, the
government, in response to the court’s question, estimated a
sentencing guideline range that did not outstrip the ten-year
mandatory minimum. Slip op. *(18 n.5). McDonald does not
require reversal on those facts. McDonald is silent on whether
any sentencing guideline range was mentioned at the Rule 11 plea
colloquy; rather, it turned on the guideline range calculated by
the judge at sentencing with the aid of the parole officer’s PSR
recommendation, and that range exceeded the mandatory minimum.
McDonald holds that failure to inform the defendant of the
applicable mandatory minimum at the Rule 11 hearing does not
impair his substantial rights where that minimum was below the
applicable sentencing guideline range.
To sum up, Santo may have been unfairly treated when
he was ambushed by a revised PSR at the sentencing hearing. He
may well have been entitled to withdraw his plea had he asked.
That he failed to do so, however, does not make what the
district court did reversible error.
For these reasons, I would affirm the judgment.
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