USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1298

UNITED STATES,

Appellee,

v.

ROY GRAY,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Stahl, Circuit Judges.

______________

_____________________

Jamie Ann Sabino,

_________________

with whom

Klibaner and Sabino, was

____________________

on

brief for appellant.

Roberta T. Brown,
_________________
whom

Donald K. Stern,
________________

Frongillo, Assistant
_________

Assistant United
United

States

United States

States

Attorney, with

Attorney

and Thomas C.
__________

Attorney, were on

brief for

appellee.

____________________

August 16, 1995

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge
______________________

Appellant Roy Gray challenges

the district court's denial of his motion to withdraw his plea of

guilty

to

charges

of

conspiracy

distribution of cocaine.

to

Because we

misunderstood the consequences of his

distribute

cocaine

find that Gray

and

reasonably

guilty plea, we remand

to

the district court for further proceedings.

BACKGROUND
BACKGROUND

On January 20,

indictment

charging

1993, a federal grand jury

Gray

with

one

count

of

distribute cocaine base, in violation of 21 U.S.C.

count

of distribution

violation

of

respectively.

guilty

21

of cocaine

U.S.C.

and aiding

841(a)(1)

and

Gray was arrested on April

at his arraignment.

On October 18,

returned an

conspiracy

846, and one

and abetting,

18

to

U.S.C.

in

2,

8, 1993, and pled not

1993, the scheduled

trial date, Gray changed his plea to guilty as to both charges.

At his change of

plea hearing, the court asked

series of questions pursuant to Fed. R. Crim. P. 11.

to

these questions,

through

the

Gray

"eighth

or

stated that

ninth

he

grade;"

In response

had attended

he

Gray a

denied

school

taking any

medicine, drugs, or alcohol on the day of the hearing, and stated

that he had not been treated recently for any mental condition or

mental

illness.

Gray

also

stated

that

he

had

no

trouble

understanding the court's questions.

The

court

advised

Gray

of his

rights

in

specific

detail, and informed him that he would waive these rights when he

pled guilty.

Gray

stated that he understood his

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rights as they

had been explained, that he understood that by pleading guilty he

would lose those rights,

and that he gave up those rights freely

and voluntarily.

The government

would have

offered if

then

summarized the

Gray's case

had gone

evidence that

to trial,

it

and the

court explained the nature of the charges.

The court asked Gray if he was entering his guilty plea

freely and voluntarily, to which Gray answered yes.

With respect

to Gray's possible sentence, the following colloquy took place:

COURT:

Do you believe it is in your best

interest

to enter

a plea

of

guilty at

this time?

GRAY:

Yes, your Honor.

am pleading

The reason why I

guilty is like:

trial and let the

Take it to

jury and the tape with

me on the tape

talking, I don't stand no

chance.

rather

I'd

plead

out,

your

Honor.

COURT:
of

So you believe then, in the light

the

evidence

otherwise,

that

on
it

the
is

in

tapes

and

your

best

interest to plead guilty even if you have

some

feelings about what you were really

doing at the time, what was

really going

on at the time; is that right, sir?

GRAY:

COURT:

Yes, sir.

And I rather plea.

Well, with that understanding in

mind, do you still enter your plea freely

and voluntarily?

GRAY:

COURT:

Yes, your Honor.

Do

you

understand

what

the

is

ten

maximum punishment can be?

GRAY:

COURT:

Not exactly, your Honor.

The

maximum punishment

years to life.

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GRAY:

Yes, your Honor.

COURT:

And a fine

of up to

$4 million

dollars -- $8 million?

GRAY:

Yes, your Honor.

COURT:

And a special assessment

of $50

on each count, do you understand?

GRAY:

COURT:

Yes, your Honor.

Do you

understand the matter

of

your sentence is up to me?

GRAY:

Yes, your Honor.

COURT:

That

agreement

am not

bound

by

the

that you have reached with the

government?

GRAY:

COURT:
sir,

Yes, your Honor.

And,
that

you

also, do
might

deportation?

GRAY:

Yes, your Honor.

you
be

understand,
subject

to

The court subsequently found that:

1) Gray's plea was

made freely and voluntarily; 2) Gray understood the nature of the

charges

3)

against him and the nature and consequences of his plea;

Gray was competent to enter his

rights,

and had freely and

plea; 4) Gray understood his

voluntarily waived them;

and 5) the

factual basis for the guilty plea was adequate, and that Gray had

indicated

that it was

in his best

interest to enter

a plea of

guilty.

Thirty-six days later, on November 23, 1993, Gray moved

to withdraw

the plea

sale of

his plea, alleging that:

agreement which he

drugs as part of

1) he did

signed; 2) he

not understand

took no part

the alleged conspiracy; and

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in the

3) he did

not understand that the consequences of his plea, specifically as

to his

sentence.

hearing

on

proffered

second

Gray's

by Gray's

motion.

At

the

counsel focused

hearing,

the

arguments

almost exclusively

on the

of these claims and Gray's assertions of innocence at his

change of plea

only pled

had

On February 3, 1994, the district court held a

hearing.

guilty because

suggested that

it

Essentially, Gray argued

his co-defendants and

was

the best

course

that he

had

defense counsel

of

action.

The

district court denied Gray's motion

In so

doing, the court pointed

had understood what he

to withdraw his guilty plea.

out that it had

was doing and had pled guilty

felt it to be in his best interests to do so.

hesitant

hesitation was

in pleading;

brought about

but I

not so

have

much

because he

The district court

explained to Gray that "there is no question in my

were

found that Gray

mind that you

to conclude

that your

from your

protested

innocence as much as it is from the penalty that you faced."1

ANALYSIS
ANALYSIS

A.
A.

Applicable Legal Principles

Applicable Legal Principles
___________________________

While a

guilty plea,

defendant has no absolute right

United States
_____________

v. Ribas-Dominicci,
_______________

to withdraw a

50 F.3d

76, 78

(1st Cir. 1995), a district court may allow such a request upon a

showing of "a fair and just reason."

also Ribas-Dominicci,
____ _______________

Crespo,
______

47

F.3d

50

1, 3

F.3d at

(1st

Cir.

Fed. R. Crim. P. 32(d); see

___

78; United States v.

______________

1995).

We

have

Cotal______

recently

____________________

The Presentence Report

for Gray had not yet been

prepared by

the date of the hearing on Gray's motion to withdraw his plea.

-5-

reiterated

whether

that

there

is

plausibility of

request;

3)

innocence;

such

the

whether

and

agreement.

the factors

4)

to

considered in

reason

proffered

the

be

are:

reason;

defendant

whether

Cotal-Crespo,
____________

the

47 F.3d

1)

2) the

has

parties

had

at 3-4.

voluntary

meaning of [Fed. R. Crim. P.] 11."

We

have explained

timing

These

the

and

force

of

his

reached

issue to be addressed,

was "knowing,

the

asserted

relevant to the ultimate

plea

determining

intentional

relinquishment or

the

legal

plea

factors are

namely, whether

intelligent within

the

Id. at 3.
__

that by entering

a guilty

plea, a

defendant effectively waives several constitutional rights.

that waiver to be valid, the

and

For

plea must amount to a voluntary and

abandonment of

a known

right or

privilege.

459,

466

Id. at 4 (citing McCarthy v.

__
________

(1969)).

defendant

Rule

11

was

United States, 394 U.S.

_____________

intended

to ensure

that

who pleads guilty does so with an understanding of the

nature of the charge and the consequences of the plea.

We have

identified the

absence

of coercion;

three "core

2)

the guilty plea.

Id.
__

concerns" of Rule

the defendant's

charges; and 3) the defendant's

Id. at 4.
__

11:

1)

understanding of

the

knowledge of the consequences of

While technical violations of Rule 11 may

often be deemed harmless, a total failure

to address one of Rule

11's

"core concerns" mandates that the guilty plea be set aside.

Id.
__

In the absence of such a "total failure," the question to be

determined

is

whether

deficiencies

in

the

Rule

11

hearing

-6-

affected the defendant's "substantial rights."

Fed. R. Crim.

P.

11(h); see also Cotal-Crespo, 47 F.3d at 5.

________ ____________

In determining

one of

the

whether there

the core concerns of

has been a

Rule 11, we review

circumstances surrounding the

violation of

the totality of

Rule 11 hearing

at which the

defendant pled

guilty.

Cotal-Crespo,
____________

explained that "[w]hat is

communicated

47 F.3d

at 4.

critical is the substance of

We

have

what was

by the trial court, and what should reasonably have

been understood by

communication."

the defendant,

rather than the

form of

the

Id. at 4-5.
__

We will reverse a district court's decision disallowing

the

withdrawal

"demonstrable

of a

abuse of

guilty

plea

discretion."

only

upon a

Id. at
__

5.

court's subsidiary findings of fact in connection

withdrawal motion are reviewed

Was Gray's guilty plea "voluntary

Was Gray's guilty plea "voluntary
___________________________________
and intelligent"?

of

The district

with the plea-

only for clear error.

these principles in mind, we turn to Gray's claims.

B.
B.

showing

Id.
__

With

and intelligent"?
________________

Gray claims that because of certain deficiencies in his

Rule

11 hearing, his guilty

intelligently.

given voluntarily and

Although Gray offers several

his claim, we find that

his

plea was not

grounds to support

only one of them merits discussion.

In

motion to withdraw his plea, Gray stated essentially that he

did not understand that he was pleading to a crime with a minimum

ten-year sentence.

the

consequences of

He claims now that

his

plea "tainted

-7-

this misunderstanding of

his

decision to

plead

guilty," and constitutes

concerns.

understood

responded,

"what

"Not

explain

stated,

added).

Rule 11's

core

asked by the court at his Rule 11 hearing whether

the

maximum punishment"

exactly,"

thus

uncertainty about the consequences

to

of one of

Although it is a close question, we agree.

When

he

a violation

these

alerting

could

the

court

of his plea.

consequences, however,

the

be,

In

to

Gray

his

its attempt

court mistakenly

"The maximum punishment is ten years to life." (Emphasis

_______

This statement

minimum sentence for

was incorrect;

in fact,

the mandatory
_________

the crime to which Gray pled guilty was ten

_______

years,

and

the

sentence.

court

had

discretion

Moreover, this incorrect

by the court's subsequent

your sentence

sentence was

based

no

is

up to

over

statement to Gray that "the

me," implying

statements,

concluded that

ten

discretion

the court,

of

years

a defendant

was

the

and that

minimum

explanation was exacerbated

that the

discretionary rather than mandatory.

on these

this

by

length of

the

We think that

could have

maximum
_______

matter of

reasonably

sentence,

pleading guilty

at

the

it was

possible that he could receive a sentence of less than ten years.

The

incorrect

government

concedes

that

the

explanation of Gray's sentence was

district

court's

"short of ideal."

The government nevertheless argues that, when considered in light

of the fact that Gray had that morning signed the plea agreement,

which specifically sets

sentence

harmless.

of

forth the

ten years,

This argument

the

applicable minimum

court's mistake

should

ignores the plain language of

mandatory

be deemed

Rule 11,

-8-

stating that "the court must address the defendant personally

open

court and inform the

in

defendant of, and determine that the

_______________________

defendant understands," the matters enumerated in Rule 11.

_____________________

R.

Crim. P. 11(c) (emphasis added).

Fed.

We have held that "reliance

on a written document is not a sufficient substitute for personal

examination

concerns

F.3d 1, 3

by the

court" in

are addressed.

ascertaining that Rule

United States v.
______________

11's core

Medina-Silverio, 30
_______________

(1st Cir. 1994) (internal quotations omitted).

When

asked at the hearing, Gray clearly stated under oath that

he did

not
___

that

fully understand

he

signature

had signed

on

the

his potential

the plea

plea

sentence, despite
_______

agreement

agreement

is

that morning.

therefore

the fact

Gray's

insufficient

indication of his actual understanding of the consequences of his

plea,

and

thus

cannot

cure or

obviate

explanation of the applicable sentence.

the

court's mistaken

We think that the substance of what was communicated to

Gray, specifically the district court's

explanation of the

incorrect and misleading

mandatory minimum sentence, could

have led a

reasonable person to misunderstand the consequences of his guilty

plea

in this

context, thus

implicating one

of Rule

11's core

concerns.

Although

the court's error is

address"

one of Rule

F.3d

5,

at

we

11's core

cannot

say

reasonable misunderstanding

substantial rights within the

not a "total failure to

concerns, see
___

with

of his

any

Cotal-Crespo, 47
____________

certainty

sentence did not

meaning of Rule 11.

-9-

that

Gray's

affect his

In fact, the

record

indicates, and

decided

counsel.

of

his

decision

It seems likely, at

clearly and

leading

even suggests,

that Gray

to withdraw his guilty plea only after learning the true

consequences

plea,

the government

through

the very least, that

accurately understood

he would

have

to Gray's

discussions

therefore

his

if Gray had

the consequences of

decided differently.

misunderstanding

with

a guilty

The court's

error

affected

Gray's

substantial rights, and Gray's guilty plea cannot be said to have

been given voluntarily and

intelligently.2

that

erred

the

district

court

in

Accordingly, we hold

denying

Gray's

motion to

withdraw his guilty plea.3

The judgment of conviction and sentence is vacated.

______________________________________________________

The guilty plea is set aside and the case is remanded for further
_________________________________________________________________

proceedings consistent with this opinion.

________________________________________

____________________

We recently rejected a somewhat similar challenge as harmless

error.

In

United States v. L pez-Pineda, 55

_____________
____________

F.3d 693 (1st Cir.

1995), the appellant contended that the Rule 11 plea colloquy had
been

deficient due

to

the failure

of

the district

identify the applicable minimum mandatory sentence.

The

four-part

(plausibility of
request,

test

for

grounds for

assertion

of

assessing

such

Id. at
__

Rule

requesting plea change,

innocence,

and

legal

court

11

to

696.

claims

timing of

sufficiency

of

original Rule
case.

First,

vacation of his

11 hearing), requires
Gray advances
guilty plea

sentencing consequences
whereas

plausible basis

and for failing

of his

guilty plea,

L pez-Pineda tendered a

Id. at 697.
__

no claim of innocence.

Because we find

his guilty

in this

for requesting

to understand
see supra
___ _____

the

at 8-9,

highly implausible explanation.

Second, L pez-Pineda complained only

imposed.

a different result

after his sentence had been

Third, unlike Gray, L pez-Pineda asserted

Id.
__

that Gray misunderstood

the consequences of

plea and reverse on this basis, we do not address his

other arguments on appeal.

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