United States Court of Appeals
For the First Circuit
No. 07-1426
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS RIVERA-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and DiClerico,* District Judge.
Ignacio Fernández de Lahongrais for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, for appellee.
March 12, 2009
*
Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Appellant Carlos Rivera-Maldonado,
who pled guilty to possession of child pornography, now asks us to
vacate the judgment against him because he was misinformed about
the consequences of his plea in a written plea agreement and during
his change of plea colloquy. He was told that the maximum term of
supervised release could be no more than three years. In fact, the
applicable maximum term of supervised release was life, and that
was the supervised release term imposed at sentencing. Although
appellant did not contemporaneously object to this error or move to
withdraw his plea in the district court because of it, we find that
the error was plain and that it affected his substantial rights as
well as "the fairness, integrity, or public reputation of judicial
proceedings," United States v. Olano, 507 U.S. 725, 736 (1993)
(internal quotation marks and citation omitted). Accordingly, we
vacate the judgment and order that appellant be permitted to
withdraw his guilty plea.
I.
On April 6, 2006, appellant was indicted for knowing
possession of child pornography in violation of 18 U.S.C. §
2252(a)(4)(B). On June 27, 2006, he signed a written plea
agreement stipulating that he had accessed an internet website
where users posted and shared files containing child pornography.
The agreement also stipulated that when Bureau of Immigration and
Customs Enforcement officials learned of this access, they
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conducted a consensual search of appellant's home that resulted in
seizure of his computer and other digital media. Further, the
agreement stipulated that investigation by a computer forensics
examiner revealed that the seized computer had been used to access
and store numerous still images and movie files containing child
pornography.
According to the written plea agreement, the maximum
penalty for appellant's offense was: "a term of imprisonment which
may not be more than ten (10) years, a fine not to exceed two
hundred fifty thousand dollars ($250,000), and a term of supervised
release of no more than three (3) years." (Emphasis added.) In
fact, the maximum period of supervised release applicable to the
charged offense was life, not three years. See 18 U.S.C. §
3583(k).1
A magistrate judge conducted appellant's change of plea
hearing on June 27, 2006.2 Before deciding whether to recommend
1
Appellant pled guilty to 18 U.S.C. § 2252, a class C felony.
18 U.S.C. §§ 2252(b)(2), 3559(a)(3). Although class C felonies
normally carry a maximum supervised release term of three years,
18 U.S.C. § 3583(b)(2), the Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act (PROTECT Act) became
effective in 2003, authorizing a life term of supervised release
for certain offenses, including § 2252 offenses. PROTECT Act, Pub.
L. No. 108-21, § 101, 117 Stat. 650 (2003) (codified at 18 U.S.C.
§ 3583(k)); see also United States v. Presto, 498 F.3d 415, 417-18
(6th Cir. 2007).
2
Under 28 U.S.C. § 636(b)(1)(B) and District of Puerto Rico
Local Rule 72, the magistrate judge had authority to conduct the
change of plea hearing and to make a recommendation to the district
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acceptance of appellant's plea to the district judge, the
magistrate judge confirmed, among other things, that appellant had
reviewed and discussed the plea agreement with his attorney, that
nothing in the agreement came as a surprise to him, and that he
understood that the sentencing judge could accept or deny the
sentencing recommendations set forth in the agreement. The court
also reiterated the plea agreement's erroneous assertion that
appellant could receive no more than three years of supervised
release for his crime. The following exchanges occurred during
this change of plea hearing:
Court: And let me advise you that you're
facing a maximum penalty, a maximum sentence
of 10 years imprisonment, a fine not to exceed
$250,000 and a term of supervised release of
up to three years. You also have to pay a
special monetary assessment of $100. Do you
understand those maximum penalties?
Appellant: Yeah.
. . .
Court: Now, let me advise you that the only
limits to Judge Cerezo's discretion -- again,
she has to consider the guidelines but is not
bound by them -- the only limits to her
sentencing discretion [are] the 10-year
maximum sentence of imprisonment as well as
all the other maximum penalties. Is that
understood?
Appellant: Yeah.
The Court: . . . Let me advise you also that,
should she not follow the guidelines and not
court judge on whether to accept the plea.
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follow what is contained in the plea
agreement, as long as she sentences you up to
the statutory maximum, that is within her
discretion. Do you understand this?
Appellant: Yeah.
(Emphasis added.) The district court judge, acting on the
magistrate judge's recommendation, accepted appellant's plea of
guilty on July 13, 2006.
After the change of plea hearing, the probation office
prepared a presentence report (PSR). The PSR stated that
appellant's base offense level was 18. See U.S.S.G. § 2G2.2(a)(1).
It recommended a two-level enhancement pursuant to U.S.S.G. §
2G2.2(b)(2) because the pornographic material contained images of
a prepubescent minor or a minor under twelve years old, and a two-
level enhancement pursuant to U.S.S.G § 2G2.2(b)(6) because
appellant's possession of the material resulted from his use of a
computer. It further recommended a four-level increase because the
offense involved material portraying sadistic or masochistic
conduct, U.S.S.G. § 2G2.2(b)(4), and a four-level increase because
the offense involved at least 300 but fewer than 600 images,
U.S.S.G. § 2G2.2(b)(7)(C). Finally, the PSR recommended a three-
level reduction because appellant accepted responsibility for his
conduct. U.S.S.G. § 3E1.1(a), (b). Contrary to the plea agreement
and the information provided by the magistrate judge, the PSR
correctly stated that the applicable maximum period of supervised
release was life. 18 U.S.C. § 3583(k); see supra note 1.
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Appellant filed objections to the PSR but did not object to its
assertion that he could be sentenced to a lifetime of supervised
release.
On January 30, 2007, the district court judge conducted
appellant's sentencing hearing. The judge adopted the PSR's
sentencing recommendations, including the recommended enhancements
and the recommended downward adjustment for acceptance of
responsibility. The judge agreed with the PSR that based on the
resulting offense level of 27 and appellant's criminal history of
Category II, appellant's guideline imprisonment range was 78-97
months. The judge also found that, pursuant to 18 U.S.C. §
3583(k), appellant could be sentenced to a supervised release term
of life. When the judge announced this possibility, appellant did
not object. The judge sentenced appellant to 78 months of
imprisonment followed by supervised release for life. This appeal
followed.
II.
Change of plea colloquies are governed by Federal Rule of
Criminal Procedure 11, which requires courts to properly advise
defendants, inter alia, of "any maximum possible penalty, including
imprisonment, fine, and term of supervised release." Fed. R. Crim.
11(b)(1)(H). A defendant who did not object to a Rule 11 error in
the district court must satisfy plain error review to obtain relief
on appeal. United States v. Vonn, 535 U.S. 55, 59 (2002). Here,
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appellant must meet that standard of review because he never
objected to the misinformation contained in the plea agreement and
later restated by the magistrate judge at the change of plea
hearing. Likewise, he never moved to withdraw his guilty plea in
the district court on the basis of the misinformation, even after
the PSR made clear that he was actually eligible for lifetime
supervised release and the district court judge stated that
possibility at sentencing. Plain error review requires appellant
to make the four part showing that: 1) there was an error, 2) the
error was plain, 3) the error affected substantial rights, and 4)
the error "'seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.'" Vonn, 535 U.S. at 62-63
(quoting Olano, 507 U.S. at 736) (alteration in original). The
Supreme Court explained in United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004), that a Rule 11 error affects substantial rights
and therefore satisfies the third prong of the plain error test
only when a defendant can show "a reasonable probability that, but
for the error, he would not have entered the plea."
The government concedes the first two prongs of plain
error review, acknowledging that there was an error and that it was
plain. Federal Rule of Criminal Procedure 11(b)(1)(H) requires
that before accepting a plea of guilty a court must "inform the
defendant of, and determine that the defendant understands . . .
any maximum possible penalty, including imprisonment, fine and a
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term of supervised release." Here, the magistrate judge accepting
the guilty plea did not inform appellant that he could be sentenced
to lifetime supervised release. Instead, relying on the plea
agreement, he erroneously stated that the maximum possible period
of supervised release was three years. We agree with the parties
that this was plain error.
Having established the first two prongs of plain error
review, appellant must next meet the Dominguez Benitez standard of
prejudice by showing that the error affected his substantial rights
because there is a reasonable probability that he would not have
entered the plea agreement but for the misstatement. Dominguez
Benitez, 542 U.S. at 83. We faced a similar claim of prejudice in
the Rule 11 context in United States v. Santo, 225 F.3d 92 (2000).
There, the defendant pled guilty to drug charges after being
informed in the plea agreement and during the plea colloquy that he
was subject to a mandatory minimum sentence of only five years and
a guideline range of 87 to 108 months (about seven to nine years).
Id. at 95. The probation office's PSR later determined that the
defendant was responsible for more drugs than were contemplated by
the plea agreement. Id. at 96. Among other consequences, this
finding increased the mandatory minimum penalty to ten years. Id.
We decided Santo before the Supreme Court ruled in Vonn
that the plain error standard should be applied to all unobjected-
to Rule 11 errors, and before it decided in Dominguez Benitez that
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a defendant seeking to establish the third prong of plain error
review in the Rule 11 context must show a reasonable probability
that but for the error he would not have entered the plea.
Nonetheless, we recognized in Santo that the defendant faced a
"high hurdle" because he had failed to seek withdrawal of his
guilty plea in the lower court. Id. at 97. We found the defendant
had cleared that high hurdle and had shown a "substantial defect in
the Rule 11 proceeding itself." Id. (internal quotation marks and
citation omitted). The defect went to the very purpose of Rule 11,
"which is to advise a defendant of the actual consequences of his
plea so that he can realistically decide whether to plead guilty."
Id. at 98; see also United States v. Hernandez-Wilson, 186 F.3d 1,
6 (1st Cir. 1999) (defendant's knowledge of the consequences of his
plea is a core concern of Rule 11). We concluded that "the
misinformation that the minimum sentence was only five years
reasonably could have affected Santo's decision to change his plea
to guilty." Santo, 225 F.3d at 101. Therefore, "the district
court's erroneous advice as to the mandatory minimum sentence
affected Santo's substantial rights," and we ordered that Santo be
permitted to withdraw his plea. Id.
The government argues that we should not order the same
relief here because the appellant "has not argued on appeal that he
would not have pleaded guilty if he had known that the maximum term
of supervised release was life." Instead, appellant claims in his
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brief that his willingness to plead "might conceivably have been
lessened" if he had known of the potential of lifelong supervised
release.3 His brief also states that the assurance of receiving no
more than three years of supervised release "played a crucial role
in his decision to plead guilty."
We reject the government's assertion that "there is
nothing in the record to support the claim that defendant would not
have entered the plea had he known that the maximum term of
supervised release was life." The government fails to acknowledge
that the appropriate standard for prejudice, set forth in Dominguez
Benitez, requires appellant to establish a reasonable probability
that he would not have entered his plea of guilty if it were not
for the error. Dominguez Benitez, 542 U.S. at 83.4 Given
appellant's assertion that the information he received from the
plea agreement and the magistrate judge "played a crucial role in
his decision to plead guilty," and given the dramatic difference
between a three year period of supervised release and a lifetime of
supervised release, we are satisfied that appellant has shown a
reasonable probability that he would not have entered the plea
3
Appellant takes this language from Santo, where we said that
"had [the defendant] known that a ten-year mandatory minimum might
apply . . . his expectations might conceivably have been lessened,
along with his willingness to plead." Santo, 225 F.3d at 101.
Appellant should have reflected in his brief the standard of
prejudice set forth in Dominguez Benitez.
4
It is troubling that the government, like appellant, did not
acknowledge this critical precedent.
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before the magistrate judge if he understood that his exposure
before the sentencing court was a lifetime of supervised release.
Indeed, it would be anomalous to conclude that the erroneous advice
on the consequences of the sentence affected substantial rights in
Santo, and then reject that conclusion here. In both cases, the
erroneous information dramatically altered the sentencing stakes
for the defendant.5
Santo, however, decided before Vonn, did not address the
fourth prong of plain error review, which requires us to decide if
an error "seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings." Vonn, 535 U.S. at 63
(quoting Olano, 507 U.S. at 731-32, 736) (alterations in original).
This issue is closer than might first appear. Although the
presentence report (which was prepared after the change of plea
hearing) advised appellant that he was exposed to a lifetime of
supervised release, he never objected to that provision of the
report. At sentencing the district judge also advised him that he
was subject to a lifetime of supervised release. He did not object
to that information or to the imposition of the life term of
supervised release. Also, as noted earlier, appellant never sought
to withdraw his guilty plea in the district court. One might infer
5
As noted, Santo was apprised by the plea agreement and the
plea colloquy that he faced a mandatory minium penalty of five
years. 225 F.3d at 95. Instead, because of the probation office's
finding on drug quantity, he faced a mandatory minimum of ten
years. Id. at 96.
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from this history that appellant chose to go forward with the
sentencing even after learning that he had been misinformed about
the maximum term of supervised release.
However, the fact remains that the error in the plea
agreement regarding the possible term of supervised release,
repeated by the magistrate judge at the critical time when the
defendant was entering his plea of guilty, was particularly
dramatic. There is a huge difference between expecting a three
year term of supervised release and expecting that one will be
subject to such supervision for the rest of one's life. Rivera was
39 years old at the time of his plea. He now faces a sentence that
could continue, in some form, until he dies.6 If we vacate his
sentence and allow him to withdraw his guilty plea, the serious
charge that he faces does not go away, nor does the evidence that
induced the guilty plea in the first instance. The prosecution and
the defense can resume the bargaining that led to the original
guilty plea. The only difference will be that appellant will now
have a complete understanding of the consequences of a guilty plea
6
Supervised release is a part of a criminal sentence which is
separate and independent from the original incarcerative term.
United States v. Work, 409 F.3d 484, 489-90 (1st Cir. 2005).
Appellant thus faces the possibility that the combination of his
original sentence and sentences imposed for any violations of
supervised release will exceed the statutory maximum for his
underlying offense. Id. at 489. He also will be subject to the
stringent conditions of his supervised release for the rest of his
life. Given the nature of the charge, that may be an appropriate
outcome. Nevertheless, appellant should have been informed of that
possible outcome before he was asked to enter his guilty plea.
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if he chooses to enter one. On balance, we conclude that it would
seriously affect the fairness, integrity, or public reputation of
the judicial proceedings at issue here if we did not allow the
appellant to consider the entry of a guilty plea with an accurate
understanding of the possible sentencing consequences. As we have
said on many occasions, "the defendant's knowledge of the
consequences of his plea" is a core concern of Rule 11. Hernandez-
Wilson, 186 F.3d at 6.
III.
Because we find that appellant has established all of the
elements required to obtain relief under plain error review, we
vacate the judgment and remand this case to the district court with
instructions that the appellant be permitted to withdraw his plea
of guilty.
So ordered.
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