In tаking Lee Jackson Keel’s plea of guilty to bank robbery, the trial judge erroneously informed Keel that he could receive a maximum sentenсe of 45 years. In fact, the crime carried a maximum of 25 years. Although Keel received the 12-year sentence he had bargained for, we rеverse on authority of the recent decisions of this Court which require literal compliance with the new Rule 11, Fed.R.Crim.P.
Government of Canal Zone
v.
Tobar T.,
Keel was indicted for attemрted bank robbery [18 U.S.C.A. § 2113(a)], and for jeopardizing the life of a bank employee by the use of a dangerous weapon during the course of the attempted robbery [18 U.S. C.A. § 2113(d)]. Having initially, pled not guilty, Keel indicated on the day set for trial, February 5, 1976, that he might change his plea to guilty.
Counsel informed the judge thаt under the terms of the plea bargain agreement they had reached, the prosecutor would recommend a 12-year sentence оn a plea of guilty and would not oppose a 10-year sentence. The court accepted the plea and
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imposed the recommended 12-year sentence. However, during the Rule 11 hearing to take the plea, the judge inadvertently informed Keel that the maximum sentenсe which could be imposed upon a plea of guilty was 45 years imprisonment, rather than 25 years. The judge had computed the maximum potential sentence by adding the maximum for violating 18 U.S.C.A. § 2113(a), which is $5,000 and twenty years imprisonment, to the maximum for violating
id.
§ 2113(d), which is $10,000 and twenty-five years. This was clearly incorreсt. While a defendant can be convicted on multiple subsections of § 2113, he may only receive a penalty under one subsection, that is, he mаy receive no more than the maximum sentence allowed under the subsection with the greatest penalty.
Sullivan v. United States,
No appeal was taken. In May 1976, Keel moved for a reduction or modifiсation of sentence. This motion was denied on May 31, 1976.
On February 17, 1977, just over a year after sentencing, Keel brought this habeas corpus procеeding to set aside that sentence. 28 U.S.C.A. § 2255. The district court dismissed Keel's motion to vacate the sentence in a thoroughly reasoned memorаndum opinion holding that the unintentional mistake at the time of sentencing as to maximum punishment did not affect Keel’s plea. The court relied on оur
en banc
decision in
United States v. Woodall,
The line of cases upon which the court relied, however, were decided prior to the amendment of Rule 11, which now reads: Rule 11. Pleas
(c) Advice to Defendant. Bеfore accepting a plea of guilty or nolo conten-dere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if, any, and the maximum possible penalty provided by law; .
Fed.R.Crim.P. 11 (as amended by Act of July 31, 1975, Pub.L.No. 94-64, § 3(b), 89 Stat. 370, effective Dec. 1, 1975). The trial court did not have available our recent decisions which require literal compliance with the plain language of the rule.
Government of Canal Zone
v.
Tobar T.,
Keel’s case is slightly different from To-bar’s. In Tobar, the defendant was told the sentence was less than could be received. Here Keel was told it was more than he could receive. Were the case to turn on the effect this wrong information would have on the voluntariness of a defendant’s plea, the difference might be important. But in the face of a rule that invаlidates the plea unless there is literal compliance with the requirement that the court inform the defendant of the maximum sentence, the distinсtion between the two cases makes no difference in the result.
Other recent cases make it clear that the Fifth Circuit now requires strict compliance with the terms of new Rule 11 and that, upon a showing of a transgression of our
per se
rule, the defendant will be permitted to withdraw his guilty plea, whether challenged immediately by direct appeal or years later by habeas corpus.
United States v. Adams,
In
Coody v. United States,
The rule then is this: unless there is literal compliance with the requirements of Rule 11, Fed.R.Crim.P., at the time a guilty plea is accepted by the court, a criminal defendant must bе allowed to plead anew, whether or not the noncompliance with Rule 11 prejudiced him.
Applying this rule to this case, Keel must be allowed to plead anew. The trial judge erroneously informed him that he could receive a 45-year maximum sentence, when in fact he could be sеntenced to no more than 25 years. It is immaterial that— as found by the district judge — the mistake on the part of the judge was unintentional; defendant was not threatened, directly or indirectly, with a 45-year sentence should he not plead guilty; the erroneous advice occurred after Keel had indicated through his counsel a desire to plead guilty; the erroneous information did not influence defendant to change his plea from not guilty to guilty; or he actually received the 12-year sentence he had bargained for. Because the district judge failed to literally comply with Rule 11, Keel must be allowed to plead anew. Such is the law of the Fifth Circuit.
The judgment dismissing appellant’s motion to vacate his sentence is reversed. This cause is rеmanded to the district court so that Keel may plead anew.
REVERSED AND REMANDED.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, THORN-BERRY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges.
A majority of the Judges in active service, on the Court’s own motion, having determined to have this case, reheard en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.