Bentley Washington Westcott appeals from the judgment of the United States District Court for the Southern District of New York (Sotomayor, J.) convicting him, pursuant to his guilty plea, of violating 8 U.S.C. § 1326 by reentering the United States without permission after having been deported, sentencing him to sixty months’ imprisonment and three years’ supervised release, and imposing a $50.00 special assessment.
At the time of his plea, the district court informed Westcott that he faced a maximum sentence of fifteen years’ imprisonment under 8 U.S.C. § 1326(b)(2). Subsequently, as a result of authority called to the court’s attention by Westcott, the court determined that he was subject not to § 1326(b)(2)’s fifteen year maximum but instead to § 1326(b)(l)’s five year maximum.
See United States v. Westcott,
Westcott’s second argument challenges the district court’s interpretation of § 2L1.2(b)(2) of the United States Sentencing Guidelines. Under the applicable version of that Guideline, sentencing courts are required to increase the offense level for a violation of § 1326 by sixteen levels if the defendant has been convicted of an “aggravated felony” pri- or to his deportation and subsequent reentry. Westcott contends that the district court erred in determining that his 1988 conviction for first-degree robbery under New York state law triggered this enhancement.
We affirm the judgment of the district court.
I. BACKGROUND
The few facts pertinent to this appeal are not in dispute. Westcott, a Jamaican national, first entered the United States in October 1974. On May 17, 1988, a New York state court convicted him of robbery in the first degree, which is defined by New York statute as “forcibly stealing]” property. N.Y. Penal Law § 160.15 (McKinney 1988). The court imposed a sentence of five and one-half to eleven years’ imprisonment. After serving less than five years, Westcott was paroled and transferred into the custody of the Immigration and Naturalization Service. On May 20, 1993, he was deported to Jamaica.
Undaunted, Westcott reentered the United States in March 1994 using a falsified Jamaican passport. Within a year, he was arrested twice, on firearms and narcotics charges. Westcott’s parole from his 1988 robbery conviction was therefore revoked.
On August 23, 1996, a federal grand jury issued a one count indictment charging West-cott with violating 8 U.S.C. §§ 1326(a) and (b)(2) by reentering the United States without the permission of the Attorney General (§ 1326(a)) after having been arrested and deported subsequent to the commission of an “aggravated felony” (§ 1326(b)(2)). On December 5, 1996, Westcott came before the district court to plead guilty to this charge. Before accepting his plea, the district judge *110 informed Westcott that § 1326(b)(2) carried a maximum sentence of fifteen years’ imprisonment, that his actual sentence would be determined in accordance with the Sentencing Guidelines, that the Government calculated the applicable Guideline range to be from seventy to eighty-seven months, and that he would not be permitted to withdraw his plea were the actual sentence to be outside of the predicted range. Westcott indicated that he understood.
Less than a month later, in a one page letter to the district court dated December 30, 1996, Westcott argued in substance that he could not be, or should not have been, prosecuted under § 1326(b)(2), which applies only to aliens deported after committing an “aggravated felony.” He asserted that robbery in the first degree, the crime attributed to him in the indictment and that he acknowledged during his plea allocution, did not come within the applicable definition of “aggravated felony” at the time he committed and was convicted of it. In support, he cited, without elaboration,
United States v. Gomez-Rodriguez,
In the
Gomez-Rodriguez
panel decision, the Ninth Circuit held that the phrase “aggravated felony,” as used in § 1326(b)(2), did not include crimes of violence, other than murder, that occurred prior to November 29, 1990.
Having drawn the district court’s attention to this decision in his letter, Westcott asked the court to “do what is just, fair and proper.” He did not ask to withdraw his plea. In response, the district court invited counsel for the parties to brief and argue the issue Westcott had raised, which they did.
In an opinion dated April 30, 1997,
United States v. Westcott,
The district court then considered U.S.S.G. § 2L1.2, which is applicable to all convictions under § 1326. It requires that the sentencing judge increase the defendant’s offense level by sixteen levels “[i]f the defendant previously was deported after a conviction for an aggravated felony.” U.S.S.G. § 2L1.2(b) (1991). This raised the question of whether Westcott’s conviction. for first-degree robbery in 1988, held not to be an “aggravated felony” under § 1326(b)(2) because the date of the conviction preceded the effective date of the amendment of the definition of “aggravated felony” applicable to the statute, was nonetheless an “aggravated felony” under § 2L1.2(b)(2). The court held that it was, noting that Application Note 7 to § 2L1.2 defines “aggravated felony” to include “any crime of violence (as defined in 18 U.S.C. § 16 ... ) for which the term of imprisonment imposed ... is at least five years....
See
8 U.S.C. § 1101(a)(43),” U.S.S.G. § 2L1.2, comment, (n.7) (1991), and that Westcott’s 1988 robbery conviction plainly fit that definition.
Westcott,
At Westeott’s subsequent sentencing, on May 28, 1997, the district court adopted the Guidelines calculations set forth in the Pre-sentence Report (“PSR”), finding a base offense level of eight under U.S.S.G. § 2L1.2, a sixteen level enhancement for the prior aggravated felony conviction under U.S.S.G. § 2L1.2(b)(2), and a three level reduction for acceptance of responsibility under U.S.S.G. §§ 3El.l(a) and (b)(2). In addition, the district court departed downward one level because of Westcott’s agreement not to oppose deportation. Westcott’s resulting net offense level of twenty, when combined with his criminal history classification in Category V, earned him a sentencing range of sixty-three to seventy-eight months. Recognizing that § 1326(b)(1) provided a maximum sentence of five years, however, the district court imposed a sentence of sixty months’ imprisonment.
Westcott filed a timely notice of appeal.
II. DISCUSSION
Westcott raises two issues on appeal. First, he contends that the district court violated Fed.R.Crim.P. 11(c)(1) by failing to inform him, at the time of his plea, that the correct maximum penalty he faced was five rather than fifteen years, and therefore that this Court should vacate his conviction and remand for trial. Westcott asserts in the alternative that the district court misinterpreted the Sentencing Guidelines by determining that his 1988 robbery conviction constituted an aggravated felony conviction for purposes of U.S.S.G. § 2L1.2(b)(2), and that the Court therefore should vacate his sentence and remand for resentencing. Neither of these arguments is persuasive.
A. District Court’s compliance with Fed. R.Crim.P. 11
On December 5, 1997, Westcott pled guilty to a one-count indictment charging him with illegal reentry after previously having been deported subsequent to the commission of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). 2 Prior to accepting his plea, the district court informed Westcott that he faced a maximum sentence of fifteen years’ imprisonment under § 1326(b)(2), that the Government calculated his guideline range to be from seventy to eight-seven months’ imprisonment, and that the court was not bound by the Government’s estimate.
Subsequent to the entry of his plea, West-cott drew the court’s attention to the question of whether his prior robbery conviction properly could be considered an “aggravated felony” under § 1326(b)(2) in light of the
*112
effective-date limitation applicable to the underlying definition of that term found in 8 U.S.C. § 1101(a)(43). In the end, the court was persuaded by Westcott and determined that his robbery conviction should not be considered an “aggravated felony” within the meaning of § 1326(b)(2). The Court found instead that he was subject to the five year maximum sentence provided by § 1326(b)(1) for defendants whose deportation and illegal reentry occurred after the commission of a non-aggravated felony.
Westcott,
An unintended consequence of this change of position was that it rendered inaccurate the district court’s warning to Westcott, at the time of his plea allocution, that he faced a maximum sentence of fifteen years’ imprisonment. The court was not asked to, and did not, reopen the plea hearing in order to correct this inaccuracy.
Fed.R.Crim.P. 11(c)(1) requires a court to inform the defendant of, and ensure that the defendant understands, the maximum possible penalty that he faces prior to accepting his guilty plea. This disclosure requirement, along with others contained in Rule 11, serves to ensure that guilty pleas are made voluntarily and with knowledge of the alternatives.
See United States v. Renaud,
Although the Government has not appealed the district court’s sentencing of Westcott under the five year maximum provision of 8 U.S.C. § 1326(b)(1), it nonetheless argues that the district court was right when, in the course of accepting Westcott’s guilty plea, it found that § 1326(b)(2) applied and therefore instructed him that he faced a fifteen year maximum, and wrong in its subsequent opinion holding to the contrary that the five year maximum of § 1326(b)(1) controlled. Because the court rightly advised Westcott of the maximum sentence at the plea hearing, the Government insists, the court committed no error under Rule 11(c)(1).
We need not address this knotty issue or the division of authority in other circuits that it has engendered. We hold that even if the district court wrongly advised Westcott as to his maximum sentence at his plea hearing, the error was harmless under Rule 11(h).
Fed.R.Crim.P. 11(h) provides: “Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” It was enacted “to make clear that guilty pleas ‘should not be overturned, even on direct appeal, when there has been a minor and technical violation of Rule 11 which amounts to harmless error.’ ”
United States v. Ferrara,
The only possible adverse impact on West-cott of the district court’s change of position that we can perceive would have arisen if he had pled guilty as a result of the fifteen year maximum of which he was informed at his plea hearing although, had he been correctly advised of the five year maximum at the time, he would have chosen to stand trial. In other words, had Westcott known that, given the maximum sentence he could receive, he had little if anything to lose by going to trial, he would not have pled guilty.
Cf. Renaud,
Our conclusion is buttressed by the observation that, at his plea hearing, Westcott was not only informed of what the court then thought his maximum sentence to be, but also was advised of the applicable sentencing range under the Guidelines. He was told that, although he was subject to a maximum sentence of fifteen years, the likely sentence under the Guidelines was 70 to 87 months. Because of the court’s revised views as to the applicable law, the maximum sentence turned out to be five years, but the Guidelines range according to the PSR was sixty-three to seventy-eight months. The contrast between the two maximum sentences is thus tempered by the closeness between the Guidelines range of which Westcott was informed at his plea hearing and the Guidelines range and maximum sentence to which he was ultimately subjected. The naked fifteen year/ five year difference in maximum sentences of which Westcott now complains was never so starkly presented to him.
Finally, Westcott’s is an atypical case. In the usual case, the defendant complains that he was given a punishment that was greater than the one of which he was informed during the plea allocution.
See, e.g., Renaud,
In the present case, by contrast, Westcott complains that he was warned of consequences to a guilty plea that were greater than those he eventually faced. Although the argument in both situations is that, but for the misinformation, the defendant would not have pled guilty, we are less troubled where as here the defendant at his own instance finds himself in a somewhat better position than he expected from the allegedly mistaken allocution, than where a guilty plea puts the defendant in a worse position than the court previously told the defendant was possible. The wrong done to the happily surprised defendant is ordinarily less severe. In this situation we are particularly comfortable in requiring something more than the defendant’s insistence that reversal is “automatic.” The defendant must demonstrate that the misinformation mattered. No such showing has been made.
Of course, whether an error was in fact harmless because it did not prejudice the defendant “must be resolved on the basis of the record, not on the basis of speculative assumptions about the defendant’s state of mind.”
Basket,
B. Interpretation of U.S.S.G. § 2L1.2(2)(b)
Westcott contends also that the district court erred when it decided that the same conviction for first-degree robbery that the court held
was not
an “aggravated felony” for purposes of sentencing under § 1326(b)(2)
was
an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(2), the Sentencing Guideline applicable to convictions under 8 U.S.C. § 1326. We review this challenge to the district court’s interpretation of the Sentencing Guidelines
de novo. See, e.g., United States v. Adler,
As with the question of the propriety of the plea allocution under Rule 11(e)(1) disposed of above, we could avoid this issue were we to conclude, as the government invites us to, that the district court was right when, for purposes of the plea allocution, it decided that the amendment to the definition of “aggravated felony” in § 1101(a)(43) applied to Westcott’s pre-November 29, 1990 conviction for first-degree robbery. Although this would resolve the potential conflict between the definition applicable to § 1326 and that contained in the corresponding Guideline, again we decline to do so. Instead, we assume without deciding that the district court was correct in concluding that Westcott’s first-degree robbery conviction was not an “aggravated felony” for purposes of § 1326(b)(2).
The sentencing structure for violations of 8 U.S.C. § 1326 is straightforward. Subject to the maximum-sentence limitations set forth in the underlying statute, sentences for convictions under § 1326 are determined in accordance with U.S.S.G. § 2L1.2(a), which provides a base offense level of 8. The base offense level, in turn, is subject to enhancement based on the presence of certain specified offense characteristics. At the time of both Westcott’s violation of § 1326 and his sentencing, the applicable version of § 2L1.2 provided:
(1) If the defendant previously was deported after a conviction for a felony, other than a felony involving violation of the immigration laws, increase by 4 levels.
(2) If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels.
§ 2L1.2(b) (1991).
Application Note 7 to § 2L1.2, in effect at the time of Westcott’s violation of § 1326 and at the time of his sentencing, sets forth the definition of “aggravated felony” as that term is used in § 2L1.2(b):
“Aggravated felony,” ... means murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. § 802), including any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. § 921; any offense described in 18 U.S.C. § 1956 (relating to laundering of monetary instruments); any crime of violence (as defined in 18 U.S.C. §16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt or conspiracy to commit any such act. The term “aggravated felony” applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years. See 8 U.S.C. § 1101(a)(43).
U.S.S.G. § 2L1.2, comment, (n.7) (1991) (emphasis added).
Among the crimes that Application Note 7 thus identifies as “aggravated felonies” are crimes of violence, as defined by 18 U.S.C. § 16, that resulted in a sentence greater than five years. First-degree robbery under New York state law is such a crime because “under the New York definition, one element of first-degree robbery is ‘forcibly’ stealing property.”
United States v. Galicia-Delgado,
The structure and terms of the Guideline, unlike those of the statute, do not suggest that only “erime[s] of violence [ ] as defined in 18 U.S.C. § 16” committed after November 29,1990 may be taken into account. The ambiguity that bedevils 8 U.S.C. § 1326(b)(2) and the related definition of aggravated felony in § 1101(a)(43), therefore, does not seem to be present in the Application Note—but for the unexplained reference to § 1101(a)(43) in the final phrase of the Note.
According to Westcott, the language “See 8 U.S.C. § 1101(a)(43)” at the conclusion of Application Note 7 requires a contrary result. He argues that it serves to incorporate the November 29, 1990 effective date of the amendment of § 1101(a)(43), which expanded the term “aggravated felony” to include the type of crime of which he was convicted, as an effective date for Application Note 7’s own definition of the term “aggravated felony.” Thus he reads the words in Note 7,
“Aggravated felony,” as used in subsection (b)(2), means ... any crime of violence (as defined in 18 U.S.C. § 16 ... ) for which the term of imprisonment imposed ... is at least five years ... See 8 U.S.C. § 1101(a)(43).
to mean,
“Aggravated felony,” as used in subsection (b)(2), means ... any crime of violence (as defined in 18 U.S.C. § 16 ... ) for which the term of imprisonment imposed ... is at least five years, effective only after the date a similar amendment to 8 U.S.C. § 1101(a)(Jp3) became effective, November 29, 1990.
According to Westcott’s analysis, the introductory signal “see ” is transformed from an indicator of clear support for a proposition, cf. The Bluebook: A Uniform System of Citation § 1.2(a), at 23 (15th ed. 1991), into a shorthand method of incorporating an entire statutory framework. The Application Note’s “see ” reference simply will not bear the weight that Westcott seeks to place upon it.
The language in the definition of “aggravated felony” was indeed borrowed from the amended 1991 version of 8 U.S.C. § 1101(a)(43), which by that time included crimes of violence such as Westcott’s in the definition of “aggravated felony.” It made eminent sense for the Sentencing Commission therefore to refer the reader to the source of the language in the Guideline. Indeed, it would have been odd for the Commission not to have done so. But it did no more than that.
Construing the citation to § 1101(a)(43) not as a reference to but as an incorporation of § 1101(a)(43) and the definition of “aggravated felony” it contains, moreover, renders the full-length definition of the term that precedes the citation mere surplusage, and misleading surplusage at that. If incorporation was the Commissioners’ intent, surely they would have said so.
We are not troubled by finding the words “aggravated felony” to have a meaning in the Guideline different from that which they have in the substantive statute to which the Guideline relates. Despite the parallels between the statutory and Guidelines frameworks, § 2L1.2 “was intended to be applied without reference to the specific subsections of the underlying statute.”
United States v. Munoz-Cerna,
Had the Sentencing Commission intended § 2L1.2 merely to track the applicable subsection of § 1326, it could have achieved that end more reasonably by imposing variable base offense levels in accordance with whether 8 U.S.C. §§ 1326(a), (b)(1), or (b)(2) were involved. It showed no such intent. As the Seventh Circuit has observed:
The Congress apparently preferred to make the fifteen-year sanction provided by [the Immigration Act] prospective in application, but it was content in approving the guideline to employ the normal pattern and to permit the provision to have retrospective effect in the sense that all previous felonies could be brought within its scope.
Munoz-Cerna,
In holding that the definition of “aggravated felony” set forth in Application Note 7 to U.S.S.G. § 2L1.2 incorporates neither the definition of the same language contained in 8 U.S.C. § 1101(a)(43) nor that provision’s effective-date limitation, we join the other circuits that have considered and rejected the view espoused by Westcott.
See, e.g., United States v. Cazares-Gonzalez,
The only significant disagreement with this approach,
4
and thus the principal authority upon which Westcott bases his argument, is contained in the Ninth Circuit’s decision in
United States v. Fuentes-Barahona,
For the reasons set forth above, we disagree. It simply does not follow from the fact that the expanded § 1101(a)(43) definition of “aggravated felon,” with its effective date of November 29,1990, was on the books at the time the Commission drafted Application Note 7, that the “see ” citation to § 1101(a)(43) in the Application Note incorporates the effective date of the amendment to § 1101(a)(43) as well.
In light of our holding that the citation to § 1101(a)(43) in Application Note 7 does not evidence any intent to incorporate § 1101(a)(43) as the applicable definition but, instead, is meant to indicate the source of the note’s free-standing definition, we further conclude that the citation to § 1101(a)(43) gives rise to no ambiguity. Absent such ambiguity, there is no occasion for this Court to apply the rule of lenity as the Ninth Circuit did in Fuentes-Barahona, 111 F.3d *117 at 652-53. 5 The district court correctly re-jeeted Westcott’s argument and, accordingly, we affirm.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Notes
. Subsequent to Westcott’s indictment in the present case, Congress amended § 1101(a)(43) to provide that its definition of “aggravated felony” applies without regard to the date of the offense. See Omnibus Consolidated Appropriations Act of 1997, Pub.L. No. 104-208, § 321(b), 110 Stat. 3009-628 (1996).
. Section 1326(b) does not create a criminal offense separate from § 1326(a); it is a sentence enhancement provision.
See United States v. Cole,
. Westcott’s decision not to seek to withdraw his guilty plea is understandable in light of the apparent paucity of grounds he had on which to defend himself at trial, given the apparent difficulty of rebutting the facts of his presence in the United States, his previous deportation and his earlier conviction for first-degree robbery.
. Some courts have construed
United States v. Maul-Valverde,
. We therefore do not reach the government’s assertion that the rule of lenity does not apply to the Sentencing Guidelines.