STANLEY RAY CAREY, PETITIONER V. UNITED STATES OF AMERICA No. 89-6172 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-3) is reported at 884 F.2d 547. JURISDICTION The judgment of the court of appeals was entered on September 25, 1989. The petition for a writ of certiorari was filed on November 22, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court's failure to advise petitioner that his sentence would include a mandatory period of supervised release was harmless error under Fed. R. Crim. P. 11(h), when petitioner was advised of his exposure to supervised release in the presentence report and ultimately received a lower sentence than the maximum of which he was advised. STATEMENT Petitioner was convicted, upon his plea of guilty, on one count of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 63 months' imprisonment to be followed by a three-year term of supervised release. 1. Petitioner robbed a bank in Tampa, Florida, on September 8, 1988. He was arrested the following day, and, after being advised of his rights, he confessed to committing the crime. Thereafter, petitioner and the government entered a plea agreement under which petitioner agreed to plead guilty to a one-count information charging him with bank robbery. The agreement stated that that offense was "punishable by a maximum term of imprisonment of twenty years and a maximum fine of $250,000"; that the Sentencing Guidelines would apply to the case; and that petitioner had discussed the application of the Guidelines with his counsel. Plea Agreement Paragraph 5. On November 22, 1988, petitioner was rearraigned in accordance with the plea agreement. The district court advised petitioner that the maximum penalty for his offense was 20 years' imprisonment and a $250,000 fine, but it failed to advise him -- as required by Fed. R. Crim. P. 11(c)(1) -- that the sentence would also include a mandatory term of supervised release of between three and five years. /1/ Because the district court had previously held the Sentencing Guidelines unconstitutional (Gov't C.A. Br. 4 n.2), it also told petitioner that it did not follow the Guidelines and would impose sentence as though the offense had been committed prior to the Guidelines' effective date. /2/ Petitioner acknowledged that he had discussed the Guidelines with his attorney and that he understood the court's position. The court accepted petitioner's guilty plea conditionally, deferring final action on the plea until after the preparation of a presentence report. Transcript of Nov. 22, 1988 (hereinafter Plea Tr.), 7-8, 14, 15-16. /3/ Eight days before petitioner was sentenced, this Court upheld the constitutionality of the Sentencing Reform Act of 1984 and the Sentencing Guidelines in Mistretta v. United States, 109 S. Ct. 647 (1989). Accordingly, petitioner was sentenced under the Guidelines. At sentencing, petitioner affirmed that he had reviewed the presentence report with his attorney, and the attorney stated that petitioner had no objections to the report or to the probation officer's application of the Sentencing Guidelines to the facts of petitioner's case. The court found, as the presentence report concluded, that the applicable Guidelines required, inter alia, a term of imprisonment of between 51 and 63 months, plus three to five years of supervised release. Petitioner and his attorney argued for the minimum term of imprisonment allowed by the Guidelines. /4/ The court accepted petitioner's guilty plea and sentenced him to a term of 63 months' imprisonment, to be followed by three years of supervised release. Sent. Tr. 2-3, 5, 7-8. 2. Petitioner appealed his conviction, arguing that the district court had violated Rule 11 by sentencing him under the Sentencing Guidelines after advising him that it did not follow the Guidelines and by failing to advise him that his sentence would include a term of supervised release. The court of appeals affirmed per curiam. Pet. App. 1-3. Noting that petitioner "of course knew that an intervening Supreme Court decision concerning the constitutionality of the Sentencing Reform Act might compel the district court to follow the guidelines" and that petitioner and his attorney made no objection at sentencing to the use of the Guidelines, the court rejected petitioner's contention that the application of the Guidelines invalidated the conviction. Pet. App. 2. The panel acknowledged that the district court had violated Fed. R. Crim. P. 11(c)(1) by failing to advise petitioner that he would be subject to a term of supervised release, but concluded that the error was harmless under Fed. R. Crim. P. 11(h). The court of appeals explained that at sentencing, "the district court advised petitioner, as the presentence report had informed him previously, that the guidelines prescribed a term of imprisonment and a mandatory term of supervised release" and that neither petitioner nor his attorney had objected to imposition of the prescribed penalty. Pet. App. 3. Thus, the court continued, petitioner's "own conduct * * * indicates that he was not harmed by the district court's oversight at the plea hearing." Ibid. ARGUMENT 1. Petitioner contends (Pet. 7-8) that the district court's failure to inform him during his rearraignment that his sentence would include a term of supervised release requires reversal of his conviction. Although we agree that petitioner should have been advised of the mandatory term of supervised release when he offered his plea, the error was demonstrably harmless for two reasons: it was rectified prior to the imposition of sentence, and -- since petitioner's sentence was less stringent than the maximum of which he was advised -- the omission could not have affected petitioner's decision to plead guilty. The record establishes that petitioner was aware of his exposure to supervised release before sentence was imposed. The presentence report, which petitioner reviewed with his attorney before the sentencing hearing, included the probation officer's determination that the Sentencing Guidelines required a term of supervised release of between three and five years. See Sent. Tr. 2. At the sentencing hearing, after petitioner's attorney had stated that petitioner had no objection to that determination, the district court reiterated that the sentence prescribed by the Guidelines would include a term of supervised release. Id. at 2-3. Neither petitioner nor his attorney -- whose competence has not been challenged -- objected to the imposition of a term of supervised release despite several opportunities to do so. See id. at 2, 3, 5, 8. Under these circumstances, the district court's earlier omission could not have affected petitioner's substantial rights. See United States v. Reyes-Ruiz, 868 F.2d 698, 703-704 (5th Cir. 1989). Moreover, petitioner's sentence, 63 months of imprisonment followed by three years of supervised release, was less than half the potential 20-year term of imprisonment of which he was advised at his rearraignment. Since petitioner was prepared to plead guilty at a time he was exposed to 20 years' imprisonment, his decision to offer a plea could not have been different if he had known that he would be sentenced to somewhat more than 5 years' imprisonment and three years' supervised release. It is well-established that an omission of this kind is harmless error under Rule 11(h). In its note on the 1983 amendment that added subdivision h to Rule 11, the Advisory Committee cited -- as a prime example of harmless error -- the situation in which a judge "understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings * * * ." 18 U.S.C. App. at 751. A number of decisions, several of them indistinguishable from this one, have held such departures from Rule 11 to be harmless. United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988); United States v. Samuelson, 722 F.2d 425 (8th Cir. 1983); United States v. Rodrique, 545 F.2d 75 (8th Cir. 1976); Bell v. United States, 521 F.2d 713 (4th Cir. 1975); Aviles v. United States, 405 F. Supp. 1374 (S.D.N.Y. 1975), aff'd, 538 F.2d 307 (2d Cir. 1976). See also United States v. McGeehan, 824 F.2d 677 (8th Cir. 1987), cert. denied, 484 U.S. 1061 (1988). 2. There is no conflict warranting this Court's review between the court of appeals' decision in this case and decisions of other courts of appeals. Although there are decisions that indicate that an "entire failure" to address a "core concern" of Rule 11 requires "automatic reversal," e.g., United States v. Dayton, 604 F.2d 931 (5th Cir. 1979), cert. denied, 445 U.S. 904 (1980), this case does not involve an entire failure to advise petitioner of the maximum penalty applicable to his offense. No case of which we are aware would mandate reversal of a conviction on the facts of this case. In United States v. Dayton, supra, a decision that predated the promulgation of Rule 11(h), the Fifth Circuit held that "an entire failure" to address one or more of Rule 11's "core concerns" -- absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea -- "requires automatic reversal." 604 F.2d at 939. However, the Dayton court continued, traditional harmless error analysis would apply to "inadequate addresses of these matters" and other types of errors. Id. at 939-940. Since the promulgation of Rule 11(h), the Fifth Circuit has continued to adhere to the Dayton framework. See United States v. Corbettt, 742 F.2d 173, 178-179 & n.14 (1984); United States v. Bernal, 861 F.2d 434 (1988), cert. denied, 110 S. Ct. 203 (1989). The Eleventh Circuit has also expressed approval of that framework. United States v. Bell, 776 F.2d 965, 968, cert. denied, 477 U.S. 904 (1986). /5/ In a petition for certiorari seeking further review of the decision in Bernal, we recently argued that Dayton's automatic reversal rule is inconsistent with Rule 11(h)'s express requirement that "any variance" from the procedures required by Rule 11 that "does not affect substantial rights shall be disregarded" and that the Fifth Circuit's continuing adherence to its Dayton rule was inconsistent with decisions of other courts of appeals that recognized no exceptions to the applicability of Rule 11(h)'s harmless error rule. This Court denied the petition. 110 S. Ct. 203. The facts of this case do not present the question on which we sought review in Bernal. Here, there was no "entire failure" to address a "core concern," since petitioner was advised of his exposure to a 20-year term of imprisonment and a fine during his plea proceeding. Thus, within the framework of Dayton, the failure accurately to advise petitioner of all of the penalties to which he was exposed was at worst an "inadequate address" of the maximum sentence for petitioner's offense -- to which harmless error analysis would apply. Significantly, although the Eleventh Circuit expressed approval of Dayton in its decision in Bell, the court nevertheless concluded that any error in this case was harmless. Thus, whether or not Dayton's reasoning remains valid after the promulgation of Rule 11(h), that reasoning would not justify applying the "automatic reversal" rule which petitioner seeks to invoke in this case. None of the decisions cited in the petition supports reversal of petitioner's conviction. In three of those cases, convictions based upon guilty pleas were upheld on appeal. /6/ In United States v. Kerdachi, 756 F.2d 349 (5th Cir. 1985), there was confusion concerning a term of a plea agreement, and the trial court failed to address the defendant to determine his understanding of the agreement's terms. Moreover, the opinion neither discussed the nature of the harmless error analysis appropriate for a violation of Rule 11 nor even suggested that the issue had been raised. In United States v. Sharon, 812 F.2d 1233 (9th Cir. 1987), the defendant was told that he faced a maximum sentence of 21 years' imprisonment, but the trial court neglected to advise him that he also faced a special parole term of three years to life. He was sentenced to a ten-year prison term followed by a ten-year special parole term on one count, four- and two-year suspended sentences on two other counts, and five years of probation; the sentences on all of the counts were to run consecutively. When the Ninth Circuit held that the failure to advise the defendant of the special parole term was not harmless, it specifically noted that if he "violates his parole or probation, his liberty could be restricted for well over 21 years" (the maximum term of imprisonment of which he was advised). Id. at 1234. Petitioner does not face any comparable risk. /7/ Finally, in United States v. Molina-Uribe, 853 F.2d 1193 (1988), cert. denied, 109 S. Ct. 1145 (1989), the Fifth Circuit set aside a guilty plea in a case in which the court failed to advise the defendant of a mandatory special parole term of four years to life and the defendant received a lower sentence than the maximum of which he was advised. However, the court did not address the question whether these circumstances rendered the omission harmless. /8/ Thereafter, in United States v. Reyes-Ruiz, 868 F.2d at 703, a case with facts similar to those here, the Fifth Circuit held that a failure accurately to advise a defendant of his exposure to supervised release was harmless error. /9/ The court distinguished Molina-Uribe. Id. at 704. There is no conflict warranting this Court's review between the decision in this case and decisions from other circuits. /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney MARCH 1990 /1/ In pertinent part, Rule 11(c)(1) requires that, "(b)efore 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 maximum possible penalty provided by law, including the effect of any special parole term or term of supervised release * * * ." /2/ The plea proceeding occurred prior to this Court's decision in Mistretta v. United States, 109 S. Ct. 647 (1989). /3/ Petitioner asked the court to impose sentence immediately. He asserted that it would be "wasting time" to await a presentence report, since his FBI rap sheet was "not good," he had been imprisoned in Illinois five times before, and he was "going to the penitentiary anyway." Plea Tr. 16-17. The court denied petitioner's request to dispense with the presentence report. Id. at 17-18. At sentencing, the prosecutor referred to the fact that petitioner had approximately nine prior convictions. Transcript of January 26, 1989 (hereinafter Sent. Tr.), 6. /4/ Petitioner stated (Sent. Tr. 5): (I)f you feel that you need to go over the guidelines on that, that is your prerogative. If you feel that I need 20, 50, 75 years in prison, that is your pregoative. You have the power to do that. But, Your Honor, I am asking you to have mercy on me, to give me the most lenient sentence that you can within the law. /5/ Contrary to petitioner's suggestion (Pet. 9), the Seventh Circuit's dictum in United States v. Suter, 755 F.2d 523, 525, cert. denied, 471 U.S. 1103 (1985), in which the court stated that "(o)n a direct appeal of a conviction arising from a guilty plea, any noncompliance with Rule 11 requires reversal," did not commit that circuit to Dayton's automatic-reversal rule. That statement is inconsistent with the express requirements of Rule 11(h), and the Seventh Circuit has since routinely applied harmless error principles to all deviations from the procedures required by Rule 11, including those that the Fifth Circuit might characterize as entire failures to address core concerns. See, e.g., United States v. Ray, 828 F.2d 399, 406 (1987), cert. denied, 485 S. Ct. 964 (1988); United States v. Darling, 766 F.2d 1095, 1099, cert. denied, 474 U.S. 1024 (1985). /6/ See United States v. Bell, 776 F.2d at 968, 971 (no "core concern" violation; district court's failure to read indictment to petitioner and give him opportunity to ask questions about it was harmless error; to permit repleading "would be to raise form over substance"); United States v. Stitzer, 785 F.2d 1506, 1513-1514 (11th Cir.), cert. denied, 479 U.S. 823 (1986) (no "core concern" violation where allegation of coerced plea unsubstantiated; to permit repleading "would be to elevate form over substance, contrary to the spirit of Rule 11"); United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103 (1985) (no reference to "core concerns" as such; defendant not entitled to be advised that he might face civil penalties or judgments as result of plea). In addition, any intra-circuit conflict between the decision in this case and those in Bell and Stitzer would not call for this Court's review. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /7/ Thereafter, in United States v. Sanclemente-Bejarano, supra, the Ninth Circuit held that the failure to advise a defendant of his exposure to a term of supervised release was harmless where the district court told him that the maximum sentence was life imprisonment and ultimately sentenced him to 15 years in prison plus five years of supervised release. Declaring that its "analysis of harmless error has generally turned on whether the defendant knew that he could be sentenced to a term as long as the one he eventually received," the Ninth Circuit found that "no prejudice resulted to (Sanclemente-Bejarano) from the omission, and the court's error was therefore harmless." 861 F.2d at 210. Sanclemente-Bejarano confirms that petitioner would not be entitled to relief from his conviction under the harmless error analysis applied by the Ninth Circuit. /8/ By contrast, with respect to another count, the Fifth Circuit held that the trial court's mistaken advise that the defendant was subject to a mandatory minimum was harmless error, since it "'could not have had any impact on the defendant's decision to plead or the fairness in * * * holding him to his plea.'" 853 F.2d at 1197-1198. It is clear, therefore, that Molina-Uribe does not suggest that any inadequacy in a trial court's handling of Rule 11's "core concerns" warrants "automatic reversal" -- the position that petitioner advocates (see Pet. 7). /9/ In Reyes-Ruiz, the trial court advised the defendant that the maximum term of supervised release to which he was exposed was two years, rather than three. The presentence report accurately stated the applicable penalty. The Fifth Circuit concluded that "(i)n view of the fact that the court did not impose any term of supervised release, and because (the defendant) was informed of the correct maximum in the presentence report, * * * no reversible error has been shown." 868 F.2d at 703. See also United States v. Peden, 872 F.2d 1303, 1309 (7th Cir. 1989) (finding harmless a trial court's failure to advise a defendant of fact that sentence could include obligation to pay restitution in view of defendant's acknowledgment that he had reviewed a presentence report advising him of his potential restitution obligation). In this case, petitioner was accurately advised in his presentence report of his exposure to supervised release, and, as in Reyes-ruiz, his sentence was ultimately less stringent than the maximum of which he was advised. In the Fifth Circuit, we submit, the reasoning of Reyes-Ruiz would require affirmance of a conviction on facts like those of this case. /10/ In passing, petitioner suggests that he was prejudiced when he was sentenced under the Sentencing Guidelines after being advised at his rearraignment that the court did not follow the them. Pet. 7-8. The facts foreclose that contention. Petitioner's plea agreement provided that he was to be sentenced in accordance with the Guidelines, and petitioner acknowledged during his rearraignment that he had discussed the Guidelines with his attorney. Plea Tr. 8. Although the district court advised petitioner that it did not follow the Guidelines (having previously held them to be unconstitutional), petitioner was, as the court of appeals found (Pet. App. 2), on notice that an intervening decision of this Court might compel the district court to follow the Guidelines. When this Court issued its decision in Mistretta, therefore, petitioner was not exposed to a form of sentencing to which he had not agreed and whose character he did not understand. Rather, Mistretta's effect was only to reinstate the form of sentencing to which petitioner had consented in the plea agreement. At the sentencing hearing, petitioner's counsel stated that petitioner had no objection to the probation officer's computation of the sentencing range required by the Guidelines. Sent. Tr. 2. Thereafter, rather than objecting to the application of the Guidelines, petitioner's counsel argued for the minimum sentence prescribed by the Guidelines. Id. at 5. Similarly, petitioner -- after referring specifically to "the guidelines" -- asked the court to give him "the most lenient sentence that you can within the law." Ibid. See note 4, supra. As the court of appeals found, these facts are consistent only with the conclusion that petitioner was prepared to plead guilty whether, as the plea agreement and presentence report provided, the Guidelines controlled or, as he was advised during rearraignment, the judge had discretion within the statutory limits. In any event, since Mistretta has clarified the applicability of the Sentencing Guidelines, this dispute presents no question of continuing importance warranting this Court's review.