DWIGHT STEVEN BARRY, PETITIONER V. UNITED STATES OF AMERICA No. 89-7134 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-8) is reported at 895 F.2d 702. JURISDICTION The judgment of the court of appeals was entered on February 5, 1990. The petition for a writ of certiorari was filed on April 6, 1990. 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 at the time he entered his guilty plea 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 pleaded guilty in the United States District Court for the District of Kansas to attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced to 72 months' imprisonment, to be followed by a five-year term of supervised release. 1. An indictment returned in May 1988 charged petitioner with conspiracy to distribute cocaine (Count I) and attempted possession with intent to distribute cocaine (Count V). Thereafter, petitioner entered into a plea agreement under which he agreed to plead guilty to Count V of the indictment. In return, the government agreed to dismiss Count I and to recommend imposition of a sentence at the lower end of the applicable Guideline range. Pet. App. 2. During petitioner's plea proceeding, he acknowledged that he understood that his sentence would be governed by the Sentencing Guidelines and that he had discussed the Guidelines with his attorney. Transcript of July 25, 1988 (hereinafter Plea Tr.) 8-9. Petitioner's attorney confirmed that he and petitioner had discussed the possible range within which petitioner might be sentenced under the Guidelines. Id. at 9. The court advised petitioner that the maximum penalty for his offense was 40 years' imprisonment and a $2 million fine, id. at 15, but failed to note that the sentence would also include a mandatory term of supervised release. Pet. App. 2. At petitioner's sentencing, petitioner's attorney stated that he had reviewed the presentence report with petitioner and that petitioner did not dispute the accuracy of the information contained in the report. Transcript of Sept. 23, 1988 (hereinafter Sent. Tr.) 3-4. The district court found, as the presentence report determined, that the applicable Guidelines required a term of imprisonment of between 92 and 115 months, plus three to five years of supervised release. Gov't C.A. Br. 2; Sent. Tr. 9-10. Agreeing with petitioner's contention that the criminal history category to which he had been assigned overstated the seriousness of his prior criminal conduct (Sent. Tr. 4-5), the court sentenced petitioner to 72 months' imprisonment, to be followed by five years of supervised release. Id. at 9-10, 14. 2. In the court of appeals, petitioner contended that he should be allowed to withdraw his plea of guilty because the district court had not advised him before accepting the plea that his sentence would include a term of supervised release, as required by Fed. R. Crim. P. 11(c)(1). The court of appeals affirmed. Pet. App. 1-8. The court 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 held that the error was harmless under Fed. R. Crim. P. 11(h). Pet. App. 5. Noting that petitioner's "total sentence -- including the term of supervised release -- is only a fraction of the maximum penalty of which he was advised," the court concluded that "the district court's error could not have had a significant influence on (petitioner's) decision to plead guilty." Id. at 6-7. ARGUMENT Petitioner renews his contention that the district court's failure to inform him before accepting his guilty plea that his sentence would include a term of supervised release requires reversal of his conviction. Pet. 5-8. 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. First, it was rectified prior to the imposition of sentence. Second, since petitioner's sentence was less severe than the maximum of which he was advised, the omission could not have affected his 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 Gov't C.A. Br. 2; Sent. Tr. 3. At the sentencing hearing, the district court reiterated that the sentence prescribed by the Guidelines would include a term of supervised release. Id. at 10. 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 3, 4, 6, 10. Under these circumstances, the district court's earlier omission could not have affected petitioner's substantial rights. See United States v. Carey, 884 F.2d 547, 549 (11th Cir. 1989), cert. denied, No. 89-6172 (Apr. 2, 1990); United States v. Reyes-Ruiz, 868 F.2d 698, 703-704 (5th Cir. 1989); cf. United States v. Peden, 872 F.2d 1303, 1309 (7th Cir. 1989) (trial court's failure to advise defendant that sentence could include obligation to pay restitution was harmless error where defendant acknowledged that he had reviewed presentence report advising him of potential restitution obligation). Moreover, petitioner's sentence, 72 months of imprisonment followed by five years of supervised release, was far less than the potential 40-year term of imprisonment of which he was advised at the plea hearing. Since petitioner was prepared to plead guilty at a time when he was exposed to 40 years' imprisonment, his decision to offer a plea could not have been different if he had known that he would be sentenced to six years' imprisonment and five 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 an 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. In a number of cases with facts similar to those of this case, the courts of appeals have held such departures from Rule 11 to be harmless. See, e.g., United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988); United States v. McGeehan, 824 F.2d 677, 680 (8th Cir. 1987), cert. denied, 484 U.S. 1061 (1988); United States v. Samuelson, 722 F.2d 425, 426-427 (2d Cir. 1983); United States v. Rodrigue, 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). Petitioner asserts, however, that the court of appeals' decision in this case conflicts with United States v. Sharon, 812 F.2d 1233 (9th Cir. 1987), and United States v. Molina-Uribe, 853 F.2d 1193 (5th Cir. 1988), cert. denied, 109 S. Ct. 1145 (1989). Neither of the decisions cited by petitioner supports reversal of his conviction. In United States v. Sharon, 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. 812 F.2d at 1234. In holding that the failure to advise the defendant of the special parole term was not harmless, the Ninth Circuit 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. Ibid. Petitioner does not face any comparable risk. /1/ In United States v. Molina-Uribe, the Fifth Circuit set aside a guilty plea in a case in which the district 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. The court did not address the question whether these circumstances rendered the omission harmless, however. 853 F.2d at 1200. Thereafter, in United States v. Reyes-Ruiz, supra, the Fifth Circuit held that a failure accurately to advise a defendant of his exposure to supervised release was harmless error. /2/ 868 F.2d at 703. 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 in other circuits. /3/ 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 NINA GOODMAN Attorney MAY 1990 /1/ In United States v. Sanclemente-Bejarano, 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. 861 F.2d at 210. 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." Ibid. Sanclemente-Bejarano confirms that petitioner would not be entitled to relief from his conviction under the harmless error analysis now being applied by the Ninth Circuit. /2/ 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. 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. /3/ Petitioner's reliance (Pet. 5, 8) on this Court's decision in McCarthy v. United States, 394 U.S. 459 (1969), is misplaced. Although McCarthy's observation that "prejudice inheres in a failure to comply with Rule 11" (id. at 471) was once the source of some uncertainty as to whether a violation of Rule 11 invariably required vacation of a defendant's guilty plea, Rule 11(h) now makes it clear that all such errors are subject to customary harmless error analysis. See Advisory Committee Note to 1983 Amendment to Rule 11, 18 U.S.C. App. at 750-751. This Rule forecloses petitioner's contention that "a defendant is entitled to plead anew if the (the court) accepts his guilty plea without fully adhering to the procedure provided under Rule 11" (Pet. 5). See also United States v. Jaramillo-Suarez, 857 F.2d 1368, 1371 (9th Cir. 1988).