UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO. xx-xxxx



BRIEF FOR APPELLANT







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxx, Defendant-Appellant.







JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. 1291.



ISSUE PRESENTED FOR REVIEW

Whether Mr. xxxxxxx guilty plea should be vacated where the district court failed to advise him that he could be subject to a term of supervised release and further failed to advise him of the consequences of violation of a term of supervised release, including the fact that the sentence he could serve if he violates supervised release could exceed the maximum sentence cited by the district court at the plea hearing.

STATUTES AND REGULATIONS

Pertinent statutes and sentencing guidelines are contained in the addendum to this brief.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition

in the Court Below

On August 8, 1997, a one-count indictment was filed charging Kevin xxxxxxx with escape from the District of Columbia Jail in violation of 18 U.S.C. 751(a). (App. 11). (1) At the January 29, 1998, motions hearing, Mr. xxxxxxx pleaded guilty to the count. (1/29/98 Tr. at 63). Mr. xxxxxxx was sentenced on December 4, 1998, to fifteen months incarceration followed by three years of supervised release, the supervised release term to include a one-year confinement in a Community Correctional Center ("CCC"), and assessed a special assessment of $100. (App. 14-16; 12/4/98 Tr. at 47-48).

B. Statement of Facts

On April 29, 1997, Kevin xxxxxxx was incarcerated at the District of Columbia Jail on charges that he had violated supervised release. (1/29/98 Tr. at 28). Just after 6:00 p.m. on that day, he walked out of the visitors' entrance to the jail dressed in a T-shirt and surgical pants. Mr. xxxxxxx did not stop when commanded to do so by a correctional officer. He then fled from the jail premises. Within a half hour, police found him in a nearby neighborhood and brought him back to the D.C. Jail. (1/29/98 Tr. at 56; PSR 3). Mr. xxxxxxx later explained that he had walked away from the jail because his life had been threatened and he believed that he would not be protected in the jail. (PSR 4).

At the arraignment on September 10, 1997, Mr. xxxxxxx attorney requested a competency hearing. The court granted the request and an evaluation was ordered to be performed at the Federal Correctional Institution, Butner, North Carolina. (App. 12-13). Mr. xxxxxxx was found to be competent to stand trial, but was diagnosed with a personality disorder with borderline narcissistic and antisocial features. (PSR 11). Another psychological evaluation performed on December 23, 1997, at the Regional Jail in Orange County, Virginia, found bi-polar disorder and noted the "significant likelihood of diminished capacity." (PSR 11).

A pretrial motions hearing was held on January 29, 1998. In the middle of the hearing, Mr. xxxxxxx informed the court that he wanted to plead guilty to the escape charge. (1/29/98 Tr. at 41). The court then conducted a plea colloquy, informing Mr. xxxxxxx several times that he faced a sentence of "no more than five years in jail." (Id. at 43; see also id. at 44, 47, 53, 60). At no time during the colloquy did the court mention supervised release or inform Mr. xxxxxxx of the effect of a possible term of supervised release. It was upon this information that Mr. xxxxxxx based his guilty plea. (Id.)

At sentencing, the district court found that Mr. xxxxxxx had a base offense level of 13 pursuant to U.S.S.G. 2D1.1 and should receive a two-point downward adjustment for acceptance of responsibility. (12/4/98 Tr. at 4). The court then departed from the offense level by three points for diminished capacity and by three points for significant post-offense rehabilitation. (12/4/98 Tr. at 4-5, 47). It sentenced Mr. xxxxxxx to fifteen months incarceration, at the high end of the guideline range for an offense level of 5 and a criminal history category of VI. The sentence also included three years of supervised release, one of which was to be served in confinement at a Community Correctional Center.

SUMMARY OF ARGUMENT

Mr. xxxxxxx guilty plea was invalid because of fundamental defects in the plea proceeding. By not mentioning the possibility or effect of supervised release, the district court did not fulfill its obligation under Federal Rule of Criminal Procedure 11 to inform Mr. xxxxxxx of the maximum possible sentence he faced. Furthermore, the error was not harmless as the effect of a violation of the term of supervised release imposed in this case could result in Mr. xxxxxxx serving a sentence greater than the one of which he was advised. Mr. xxxxxxx guilty plea was, therefore, not knowingly and voluntarily entered and must be vacated.



ARGUMENT

THE DISTRICT COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ACCURATELY ADVISE MR. xxxxxxx OF THE MAXIMUM SENTENCE HE FACED BEFORE ACCEPTING HIS GUILTY PLEA



A. Standard of Review

In reviewing a plea proceeding on a claim of Rule 11 error, this Court will vacate the guilty plea on finding any deviation from the requirement of Rule 11, unless the government can establish that the error was harmless. United States v. Dewalt, 92 F.3d 1209, 1213 (D.C. Cir. 1996); United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir. 1995).

B. The District Court Violated Federal Rule of Criminal Procedure 11 by Not Informing Mr. xxxxxxx of a Possible Term of Supervised Release and its Effect on the Maximum Sentence He Faced

The district court here committed a serious omission under Fed. R. Crim. P. 11 that resulted in an unknowing and involuntary guilty plea by Mr. xxxxxxx. Rule 11(c)(1) requires that a district court explain the maximum possible sentence that a defendant faces and determine that the maximum is understood by the defendant prior to accepting a guilty plea. The district court must include in its explanation the effect of any possible term of supervised release because supervised release affects the maximum possible sentence to which a defendant may be subject. Rule 11 provides in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, 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 mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term ....



Fed. R. Crim. P. 11(c) (emphasis added). "The plain language of the rule indicates that in advising a defendant of the maximum penalty to which he or she is subject, the district court must tell the defendant not only of the applicability of a term of supervised release, but of that term's effect." United States v. Osment, 13 F.3d 1240, 1242 (8th Cir. 1994). The "'effect of any supervised release term' under Rule 11(c)(1) includes the consequences upon revocation of that release term ...." Id. at 1243.



Rule 11 seeks to make defendants "'fully aware of the direct consequences' of the plea." United States v. Russell, 686 F.2d 35, 38 (D.C. Cir. 1982) (quoting Brady v. United States, 397 U.S. 742, 755 (1970)); accord United States v. Watson, 548 F.2d 1058, 1061 (D.C. Cir. 1977). The purpose of the rule is to inform the defendant of "the shortest mandatory sentence and also the longest possible sentence for the offense to which he is pleading guilty" so that the decision to plead guilty is based on accurate knowledge of the full penalties faced. Fed. R. Crim. P. 11, 1974 Advisory Committee Notes. "A plea cannot be considered voluntary ... if the defendant is not 'fully aware of the direct consequences' of the plea." Russell, 686 F.2d at 38 (quoting Brady v. United States, 397 U.S. 742, 755 (1970)); cf. Dewalt, 92 F.3d at 1211 (stating that guilty plea not voluntary if defendant not fully informed of nature of charge against him).

Rule 11 places the responsibility to inform defendants of supervised release on the courts, precluding the discharge of this obligation through other avenues. Rule 11 further requires that the defendant be informed at the time the plea is entered. See United States v. Watley, 987 F.2d 841, 845 (D.C. Cir. 1993) (stating that central to "our view of the case is the perception that prevailed at the end of the ... plea hearing.") On review, the crucial time of inquiry is the plea hearing. See United States v. Padilla, 23 F.3d 1220, 1222 (7th Cir. 1994); United States v. Goins, 51 F.3d 400, 404 (4th Cir.1993).

Here, the district court informed Mr. xxxxxxx that the maximum possible sentence for his escape was "no more than five years in jail." In fact, the district court confirmed this five-year maximum at least four times during the plea colloquy. The court, however, never mentioned supervised release, much less explained its effects and consequences to Mr. xxxxxxx as required by Rule 11. In this case, supervised release constitutes a significant portion of the maximum possible penalty to which Mr. xxxxxxx is exposed. Mr. xxxxxxx plea, therefore, was based on an erroneous understanding of the sentence he could face -- an understanding that did not include the possibility of supervised release being imposed, the maximum term of supervised release that could be imposed, or the consequences of supervised release. Because of this erroneous understanding, Mr. xxxxxxx plea was unknowing and, therefore, involuntary.

The district court's failure to personally advise Mr. xxxxxxx of the maximum possible sentence he faced, including the effect of a term of supervised release, constitutes a clear violation of Rule 11.

A Rule 11 violation requires vacation of a guilty plea, unless the government can establish that the error was harmless. Dewalt, 92 F.3d at 1214. An error is harmless only where it does not affect the defendant's substantial rights. Fed. R. Crim. P. 11(h). Generally, a defendant's substantial rights are affected when the error was prejudicial and affected the outcome of the proceeding. Lyons, 53 F.3d at 1322 (citing United States v. Olano, 507 U.S. 725 (1993)); see Dewalt, 92 F.3d at 1213 (stating that the government must show that error did not affect outcome in order to demonstrate harmlessness). The Seventh Circuit has stated that substantial rights are affected when "a review of the record indicates that the oversight influenced the defendant's decision to plead guilty and impaired his ability to evaluate with his eyes open the direct attendant risks of accepting criminal responsibility." United States v. Padilla, 23 F. 3d 1220, 1221 (7th Cir. 1994); accord Lyons, 53 F.3d at 1322 (holding that no prejudice suffered where error did not affect guilty plea); Dewalt, 92 F.3d at 1213-14 (considering whether defendant had actual notice of information and whether information was important to defendant's guilty plea).

Courts that have considered failures to mention supervised release and its effect have generally held that the error was harmless only if the defendant was advised of the possible maximum sentence, and the total sentence imposed, including supervised release and possible further incarceration if supervised release is revoked, was within the maximum sentence. See United States v. Thorne, 153 F.3d 130, 133 (4th Cir. 1998); United States v. Osment, 13 F.3d 1240, 1243 (8th Cir. 1994); United States v. Syal, 963 F.2d 900, 906-07 (6th Cir. 1992); United States v. Garcia-Garcia, 939 F.2d 230, 232-33 (5th Cir. 1991). Even in cases where the defendant was aware of the existence of supervised release, but not of the consequences that may result from its violation, courts have found reversible error because the error, in effect, prevented the defendant from comprehending his potential maximum penalty. Thorne, 153 F.3d at 133.

In United States v. Osment, the Eighth Circuit faced a situation identical to the instant case. The district court had advised the defendant that he faced a maximum prison term of five years, however, it made no mention of supervised release. Osment was sentenced to fifteen months imprisonment plus three years of supervised release. 13 F.3d at 1241. The Eighth Circuit held that the district court's failure to mention supervised release was reversible error. The court stated that "the maximum possible penalty, i.e., the worst case scenario, including the effect of the supervised release term, would be as follows: fifteen months imprisonment, two years and 364 days supervised release, and two years imprisonment [for violation of supervised release], for a total of seventy-five months less one day. This total exceeds the five-year or sixty-month term of imprisonment the district court advised Osment." Id. at 1243. The Eighth Circuit held accordingly that the error was not harmless. Id.

Similarly, in United States v. Syal, the defendant was informed that he faced a maximum sentence of five years and was not informed of any term of supervised release. 963 F.3d at 902, 903 n.3. Syal was then sentenced to eighteen months imprisonment and three years of supervised release. Id. at 904. The Sixth Circuit held that the failure to inform the defendant about the nature and consequences of supervised release was not harmless error and vacated his guilty plea. Id. at 906. The court concluded that the "addition of supervised release, of which there was no discussion until after the plea hearing, can affect [the defendant's] substantial rights. Under his current sentence, if [the defendant] violates any of the conditions of his supervised release, the court can require [him] to spend the statutorily allowed portion of his supervised release time in prison in addition to the 18 month sentence in prison." Id. at 906. See also Thorne, 153 F.3d at 133-34 (allowing defendant to withdraw guilty plea where informed that maximum sentence could be 235 months and not informed of supervised release; actual sentence was 188 months incarceration plus 5 years supervised release); Garcia-Garcia, 939 F.2d at 232-33 (reversing guilty plea where defendant informed that maximum sentence was 5 years and not informed of possibility or effect of supervised release; actual sentence was 27 months incarceration and 3 years supervised release).

The district court's Rule 11 violation here constitutes reversible error because the maximum possible sentence Mr. xxxxxxx faces exceeds the five-year maximum sentence cited by the district court. In this case, the sentence imposed was fifteen months incarceration plus a three-year term of supervised release, of which one year was to be served in confinement at a Community Correctional Center. The three-year term of supervised release could result in a possible five-year (less one day) period of confinement and supervision if Mr. xxxxxxx violates the conditions of supervised release: two years and 364 days on supervised release (including one year CCC confinement), and then two additional years imprisonment if he violates supervised release on the last day and it is revoked. See 18 U.S.C. 3583(e)(3) (authorizing revocation of supervised release for violation and imposition of term of incarceration for up to two years regardless of time already served on supervised release). Mr. xxxxxxx could, under a worst-case scenario, have restraints on his liberty for over six years. This sentence would clearly exceed the maximum penalty of "five years in jail" that the district court cited and that served as the basis of Mr. xxxxxxx plea. Mr. xxxxxxx would not have pleaded guilty if he had been fully informed of the possible sentencing consequences. (2)

Furthermore, there is no indication that Mr. xxxxxxx entered his guilty plea otherwise informed that a term of supervised release could be imposed and of its effects. The statute to which he pleaded did not mandate a term of supervised release. See 18 U.S.C. 751. In addition, there was no discussion on the record that would indicate that Mr. xxxxxxx was otherwise informed that the sentencing guidelines mandated imposition of a term of supervised release. See U.S.S.G. 5D1.2(a)(2) (mandating a term of supervised release of at least 2 years but not more than 3 years). (3) Because Mr. xxxxxxx was not informed or aware of the true possible maximum penalty that he now faces, the Court should vacate his guilty plea.



CONCLUSION

For the foregoing reasons, Appellant Kevin xxxxxxx respectfully requests that this Court vacate his guilty plea.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER



________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant Kevin xxxxxxx





CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).



_________________________________

Evelina J. Norwinski

Assistant Federal Public Defender







CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 28, 1999, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Division, Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001.



_________________________________________

Evelina J. Norwinski

1. "App." refers to the Appendix of Appellant filed with this brief. The presentence report is filed in a separate appendix under seal and is cited as "PSR ___." Citations to transcripts, which are contained in the Appendix, are to the original dates and page numbers.

2. Mr. xxxxxxx pleaded guilty to the escape offense with the understanding that the "terms and conditions the government offered" would be taken into account by the district court at sentencing. (1/29/98 Tr. at 44, 41). That is, the government had agreed to support a two-level adjustment for acceptance of responsibility and not to oppose a downward departure for diminished capacity. (Id. at 47-48). Mr. xxxxxxx, therefore, believed he would end up with a sentence significantly less than five years.

3. This Court in United States v. Liboro, 10 F.3d 861, 865 (D.C. Cir. 1993), notes that a defendant's "education and sophistication" can be taken into account in determining levels of comprehension and understanding. Such an inquiry is not relevant in the context of the facts of this case. As the district court noted, Mr. xxxxxxx is quite intelligent and has a fairly extensive educational history (despite the initial concern with his mental compentency). But the central inquiry to determine Rule 11 compliance is whether the information made available to the defendant at the plea hearing correctly informed the defendant of the maximum penalty to which he was exposed. While Mr. xxxxxxx was able to comprehend the information communicated to him by the district court, there is no showing on the record that Mr. xxxxxxx was aware that a term of supervised release would be imposed as part of his sentence or the consequences of the violation of supervised release.