United States Court of Appeals,
Eleventh Circuit.
No. 95-4302.
UNITED STATES of America, Plaintiff-Appellee,
v.
Juan Ramon QUINONES, Defendant-Appellant.
Oct. 10, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-8023-CR-DTKH), Kenneth L. Ryskamp,
District Judge.
Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior
District Judge.
PER CURIAM:
Juan Ramon Quinones appeals from a judgment of conviction
entered on his guilty plea to one count of possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count
One), and one count of using or carrying a firearm during and in
relation to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c) (Count Two). Quinones contends that his plea to Count
Two, the firearm charge, was not made knowingly and intelligently
because the district court failed to inform him of the nature of
that charge as required by Fed.R.Crim.P. 11(c).1 Therefore, he
*
Honorable James H. Hancock, Senior U.S. District Judge for
the Middle District of Alabama, sitting by designation.
1
Quinones also contends that there was an insufficient
factual predicate for his conviction on Count Two, charging him
with using or carrying a firearm during and in relation to a drug
offense. Our review of the transcript of the plea hearing
reveals that there was a sufficient factual predicate to convict
Quinones of carrying a firearm during and in relation to a drug
offense.
Quinones further contends that his plea to Count Two
2
contends, his conviction on Count Two must be vacated. We
conclude that the district court committed plain error in failing
to inform Quinones of the nature of the charge to which he was
pleading guilty.
I.
Officers from the Palm Beach County Sheriff's Office observed
Quinones meeting another individual, whom they had under
surveillance, at an Amoco gas station. After the individual
entered Quinones's vehicle, the officers saw Quinones pour cocaine
rocks out of a vial and show them to the other individual. The
officers arrested both men for possession of and trafficking in
cocaine. The officers searched Quinones, finding on his person a
small quantity of crack cocaine and a loaded North American Arms
.22 caliber revolver and ammunition. A search of the vehicle
revealed crack and powder cocaine.
Quinones entered into a written plea agreement with the United
States. He agreed to plead guilty to both Count One and Count Two.
The United States agreed to recommend a three-level reduction in
Quinones's sentencing offense level based on Quinones's acceptance
of responsibility.
At Quinones's plea hearing, the district court asked Quinones
whether he had received a copy of the indictment and reviewed it
with his attorney. Quinones responded that he had. The court
was involuntary and thus obtained in violation of the Fifth
Amendment. In light of our disposition of this appeal, we
need not address this contention.
2
Quinones does not request that we vacate his conviction on
Count One.
informed Quinones of the minimum and maximum sentences possible and
of the applicability of the federal sentencing guidelines.
The government then made its proffer of what the evidence
would be if the case went to trial. Quinones objected to the
government's characterization of the transaction as a sale, arguing
that he was going to give the other individual the cocaine.
Otherwise, Quinones agreed with the substance of the government's
account of the transaction. After ensuring that Quinones
understood that a conviction of possession with intent to
distribute cocaine did not require that money change hands, the
district court accepted Quinones's plea. Quinones said, "I plead
guilty I guess." (R. 2 at 12.) Throughout the hearing, the
district court never mentioned the elements of the § 924(c) charge
of using or carrying a firearm in connection with a drug
trafficking crime.
II.
On this direct appeal, Quinones contends that the district
court failed to comply with Fed.R.Crim.P. 11(c)(1) when it accepted
his guilty plea. Rule 11(c) provides:
(c) Advice to Defendant. Before accepting a plea of guilty or
nolo contendre, 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 government argues that any deviation from Rule 11(c) at
Quinones's plea hearing was harmless error under Rule 11(h). See
Fed.R.Crim.P. 11(h) ("Any variance from the procedures required by
this rule which does not affect substantial rights shall be
disregarded.").
On a direct appeal, our analysis of whether the district
court's failure to comply with Rule 11 was harmless error is
conducted solely on the basis of the record of the Rule 11
proceedings. United States v. Hourihan, 936 F.2d 508, 511 (11th
Cir.1991); Fed.R.Crim.P. 11(h) advisory committee's note. Our
review of the record of Quinones's plea hearing reveals that the
district court failed to inform Quinones of the nature of the
charge in Count Two. The record, moreover, gives no indication
that Quinones knew or understood the elements comprising a charge
of using or carrying a firearm during and in relation to a drug
trafficking crime. Thus, the district court failed to comply with
Rule 11(c)(1).
The issue, then, is whether the district court's failure to
inform Quinones of the nature of the charge entitles him to
withdraw his plea to Count Two. Quinones did not move in the
district court to withdraw his guilty plea; he raises the district
court's failure to comply with Rule 11(c) for the first time on
this appeal. Usually, when an objection is not made in the
district court, our review is confined to review for plain error.
See Fed.R.Crim.P. 52(b) ("Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court."). Plain error is error that is clear
or obvious and affects substantial rights. United States v. Olano,
507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508
(1993). Plain error analysis differs from harmless error analysis
in that the defendant bears the burden of persuasion with respect
to prejudice. Id. at 734-36, 113 S.Ct. at 1778.
We have not addressed whether a defendant who fails to assert
a Rule 11 violation in the district court must show plain error on
a direct appeal.3 We see no reason why the plain error rule should
not apply in the Rule 11 context, though we recognize that many
non-technical deviations from Rule 11 will constitute plain error.
We hold that a defendant who has not presented his objection to the
district court—for example, through a motion to withdraw the
plea—must show plain error on direct appeal.
In this case, the district court's failure to comply with
Rule 11 was plain error because the court failed to address a core
concern of Rule 11. We have identified three core objectives of
Rule 11: (1) ensuring that the guilty plea is free of coercion;
(2) ensuring that the defendant understands the nature of the
charges against him; and (3) ensuring that the defendant is aware
of the direct consequences of the guilty plea. United States v.
Zickert, 955 F.2d 665, 668 (11th Cir.1992). Failure to satisfy any
of the core objectives violates the defendant's substantial rights.
3
The Ninth and Seventh Circuits have applied plain error
review when a defendant fails to object to violations of Rule 11
in the district court. United States v. Chan, 82 F.3d 921, 923
(9th Cir.1996); United States v. Cross, 57 F.3d 588, 590 (7th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 406, 123 L.Ed.2d
324 (1995). According to the D.C.Circuit, however, the absence
of a contemporaneous objection does not trigger plain error
analysis; any deviation from Rule 11 is reversible unless the
government demonstrates that it was harmless error. United
States v. Lyons, 53 F.3d 1321, 1322 n. 1 (D.C.Cir.1995). The
First Circuit has not resolved the appropriate standard when
there was no objection in the district court. United States v.
Martinez-Martinez, 69 F.3d 1215, 1219 (1st Cir.1995), cert.
denied, --- U.S. ----, 116 S.Ct. 1343, 134 L.Ed.2d 492 (1996).
Id.4 In this case, the district court failed to satisfy the core
objective that Quinones understand the nature of the charge against
him. Quinones's substantial rights were violated, therefore, and
the district court's error was plain error.
III.
We remand with instructions that the district court permit
Quinones to withdraw his guilty plea on Count Two. Should Quinones
elect to withdraw his plea on Count Two, the district court should
vacate the sentence imposed on Count One and resentence Quinones on
that count either immediately or upon the disposition of the Count
Two charge.5
REMANDED WITH INSTRUCTIONS.
4
In Hourihan, we suggested that Rule 11(h) harmless error
analysis may not be applicable when a district court completely
fails to address a core concern of Rule 11. 936 F.2d 508, 511 n.
4. However, because we found that the error in that case was not
harmless, we did not resolve whether Rule 11(h) may excuse a
failure to satisfy Rule 11's core concerns. In holding that a
defendant's substantial rights are violated whenever Rule 11's
core concerns are not met, Zickert resolves the issue.
5
This court follows a holistic approach to sentencing
following a review on direct appeal of convictions and sentences
under a multicount indictment. See United States v. Alvarez-
Moreno, 874 F.2d 1402, 1414 (11th Cir.1989), cert. denied, 494
U.S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990); United States
v. Anderson, 872 F.2d 1508, 1520-21 (11th Cir.), cert. denied,
493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989); United
States v. Lail, 814 F.2d 1529, 1530 (11th Cir.1987). See also
United States v. Cochran, 883 F.2d 1012, 1015 n. 6 (11th
Cir.1989). We therefore conclude that vacation of the sentence
on Count Two will require vacation of the sentence on Count One
because the sentences on both counts were part of a single
sentencing package.