333 F.3d 1070 | 9th Cir. | 2003
Lead Opinion
Opinion by Judge BROWNING; Dissent by Judge GOULD.
OPINION
Frederico Angel Villalobos
The district court denied the motion and sentenced Villalobos to 60 months. He appeals. We reverse and remand.
1. Facts and Procedural History
Villalobos was indicted on two counts of violating drug laws. Count one charged conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A),
The plea agreement and plea colloquy focused only on count 1, charging conspiracy to distribute heroin under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and specified that the government would have the burden of proving two elements beyond a reasonable doubt: (1) that there was an agreement between two or more persons to distribute heroin during the relevant time period; (2) that Villalobos became a member of the conspiracy knowing of its object and intending to help accomplish it.
Villalobos pled guilty to count 1 and stipulated in his plea agreement that the amount of heroin involved was at least 100 grams but less than 400 grams. Before Villalobos’ sentencing, the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and
Villalobos’ appeal challenges his plea.
II. Villalobos’ Guilty Plea
In United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002), we held that to comply with Rule ll’s requirement that the defendant be informed of the nature of the charge against him, before accepting a plea the district court “must advise the defendant that the government would have to prove to the jury beyond a reasonable doubt any quantity of drugs that would expose the defendant to a higher statutory maximum sentence.” The government concedes that the district court did not so advise Villalobos, but argues that the error was harmless.
Standard of Review
We review de novo the adequacy of the Rule 11 plea colloquy. Id. at 1115. To ensure that the defendant is informed of the nature of the charge against him, as required by Rule 11, the district court must advise the defendant during the plea colloquy “of the elements of the crime and ensure that the defendant understands them.” Id. If Rule 11 is not complied with, a guilty plea must nonetheless be upheld if the error is harmless. United States v. Graibe, 946 F.2d 1428, 1433 (9th Cir.1991).
Rule 11 Error
“Our inquiry starts, as any Apprendi inquiry must start, with a delineation of the penalties normally associated with the counts of conviction.... Because the penalty provision of section 846 tracks the penalties provided for violations of section 841(a)(1), we focus on the latter.” United States v. Robinson, 241 F.3d 115, 118 (1st Cir.2001).
The penalty for violating § 841(a)(1) varies according to the drug quantity involved. 21 U.S.C. § 841(b)(1);
The Error Was Not Harmless
Because Villalobos attempted to withdraw his plea in the district court on the basis of the Apprendi error, the harmless error standard applies. See United States v. Martinez, 277 F.3d 517, 524 & n. 8 (4th Cir.2002); United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To show that the error was harmless, the government must establish either that the record affirmatively demonstrates that the defendant “was aware of the rights at issue when he entered his guilty plea” or that the district court’s Rule 11 error was simply “minor or technical.” Minore at 1119.
The government has failed to meet this burden. First, it is unable to make an “affirmative showing on the record that the defendant was actually aware of the advisement[that drug quantity had to be proved beyond a reasonable doubt],” Graibe, 946 F.2d at 1435. Neither Villalo-bos’ plea agreement nor his plea colloquy informed him that drug quantity was an element of the charged offense to be proven beyond a reasonable doubt. Rather, as in Minore, “consistent with the law at the time, [Villalobos] was told that the judge would determine drug quantity” by a preponderance of the evidence. 292 F.3d at 1119.
The government nevertheless maintains that Villalobos “understood that the drug quantity was a significant factor which affected the maximum term of imprisonment as well as his guideline range.” Even if true, this is not enough; whether Villalo-bos understood that drug quantity was a significant factor does not change the fact that he was unaware that the government had to prove drug quantity beyond a reasonable doubt.
Second, the Rule 11 error was neither minor nor technical. See Minore at 1119-1120. As in Minore, Villalobos’ substantial rights were affected because he was not informed of a critical element of his offense, as required by due process. Id. (finding that the defendant’s substantial rights were affected by the district court’s rule 11 error regarding the proper burden of proof on drug quantity, noting “[t]he defendant’s right to be informed of the charges against him is at the core of Rule 11, which exists to ensure that guilty pleas are knowing and voluntary.”) (citation omitted). The error also affected his substantial rights because it was prejudicial. “An error will affect a defendant’s substantial rights if it is prejudicial, i.e., it must have affected the outcome of the district court proceedings.” Martinez, 277 F.3d at 532 (citation omitted).
During his sentencing hearing,
We also reject the government’s contention that Villalobos’ stipulation as to quantity bars relief as the defendant’s admissions regarding quantity did in Minore. In Minore, the defendant ultimately was denied relief even though the court found that the Rule 11 error had affected Mi-nore’s substantial rights, because under the further inquiry required for plain error analysis, the Rule 11 error did not “seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings,” Id. at 1120 (citing Olano, 507 U.S. at 732, 118 S.Ct. 1770). No such additional finding is required under the harmless error standard. Vonn, 122 S.Ct. at 1048.
Even if such a finding were required, Villalobos’ case is distinguishable from Minore’s. In making its fairness determination, the Minore court relied on the fact that the defendant “unequivocally admitted in his plea agreement, during his plea colloquy and at his sentencing hearing that he should be held responsible” for enough drugs to expose him to a statutory maximum sentence of life in prison. 292 F.3d at 1120. In contrast, Villalobos contested the amount of drugs at the sentencing hearing saying he admitted he sold drugs, but not the amount the government alleged. His stipulation was based on a pre-Apprendi understanding of the government’s burden of proof as to drug quantity. Unlike Minore, the evidence as to quantity in Villalobos’ case is not unequivocal or overwhelming; in fact, there is very little evidence as to the quantity involved. Furthermore, in Minore, the defendant had the burden of persuasion, whereas here, under the harmless error standard, the burden lies on the government. We give little weight to Villalobos’ stipulation, entered when he was not properly informed as to the burden of proof.
We conclude Villalobos’ guilty plea was not knowing, intelligent or voluntary because he was not informed that drug quantity was an element of his offense to be proven beyond a reasonable doubt, and the error affected Villalobos’ substantial rights and was not harmless. The district court should have allowed Villalobos to withdraw his plea.
III. Conclusion
We reverse and remand to the district court to vacate Villalobos’ plea, conviction and sentence, and for further proceedings consistent with this decision.
REVERSED AND REMANDED.
. There is some uncertainty in the record as to the defendant's correct name. At the plea colloquy, the defendant said his name was Julio Rodriguez-Ramirez. In accordance with the caption, we refer to him as Villalo-bos.
. 21 U.S.C. § 841(b)(1)(A) addresses violations involving 1 kilogram or more of heroin and exposes a defendant to a sentence of 10 years to life.
. This argument is now foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002)(en banc) and United States v. Mendoza-Paz, 286 F.3d 1104, 1107 (9th Cir.2002).
. Villalobos' opening brief questions the district court’s refusal to withdraw his plea and its imposition of the mandatory minimum, arguing that his plea was “unintelligent" because he was not informed that drug quantity was an element that would have to be proved beyond a reasonable doubt. While this case was pending, our court decided United States v. Minore, 292 F.3d 1109 (9th Cir.2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003), which addressed Appren-di errors in the context of a plea colloquy. We requested supplemental briefing on the impact of Minore. The government’s supplementary brief recognized that Villalobos' challenge to his plea encompassed the adequacy of the plea colloquy since Villalobos moved to withdraw his plea prior to sentenc-. ing on the grounds that he was not properly informed as to the elements of his offense, that error had occurred, and that the harmless error standard applied. See United States v. Martinez, 277 F.3d 517, 524 & n. 8 (4th Cir.2002); Minore, 292 F.3d at 1113. See also United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
. In determining the defendant’s understanding of the rights at issue, we may look at the record of the sentencing hearing as well as the record of the plea colloquy. Vonn, 122 S.Ct. at 1054-1055; Minore, 292 F.3d at 1119.
. We reject the dissent’s contention that our reliance on Minore is improper in light of the Supreme Court's decision in United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Unlike Ruiz, which concerned evidence that might be adduced at trial to satisfy the government's burden of proof, information which was related to the fairness of a trial, not the voluntariness of a plea, and did not affect whether the defendant understood "the nature of the right and how it would likely apply in general in the circumstances,” Ruiz at 629, 122 S.Ct. 2450, the information at issue here—the burden of proof itself for the element of drug quantify— goes directly to the nature of the charge against Villalobos and to the voluntariness of his plea, and is properly characterized as "critical information of which the defendant must always be aware prior to pleading guilty.” Id. at 630, 122 S.Ct. 2450. See also Minore at 1117 ("for the purposes of assessing what a defendant must understand about the nature of the charges against him, we have no trouble concluding that the dramatic impact of drug quantity on sentencing renders that element critical”).
Moreover, we are bound by the decision in Minore. Both the Supreme Court and this court have implicitly recognized that Ruiz does not undermine Minore’s holding. Several months after Ruiz was issued, this court denied rehearing and rehearing en banc in Minore, and the Supreme Court denied certiorari. See Minore, 292 F.3d 1109, appellee’s pet. for panel reh’g denied, 302 F.3d 1065 (9th Cir.2002), appellant’s pet. for panel reh’g and reh’g en banc denied, 303 F.3d 1120 (9th Cir.2002), cert. denied, - U.S. -, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003).
. The government also claims that Villalobos suffered no prejudice because his actual sentence was below the maximum for his offense, and argues that as a result the Rule 11 error could not have affected his decision to plead guilty. But the proper inquiry is whether Villalobos was exposed to a higher sentencing range by pleading guilty to a certain quantity of heroin, which he was, regardless of his actual sentence. See Minore, 292 F.3d at 1116.
Dissenting Opinion
dissenting.
I respectfully dissent, believing that the Supreme Court decision in United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), undermines our precedent in United States v. Minore, 292 F.3d 1109 (9th Cir.2002), on which the majority incorrectly relies.
Ruiz involved a plea agreement requiring the defendant to waive her right to receive information from the prosecutors about evidence that could be used to impeach a witness at trial. The defendant argued that such waiver meant that her guilty plea was not “voluntary.” Ruiz held that “impeachment information is special in relation to the fairness of a trial, not in
the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See Brady v. United States, 397 U.S., at 757, 90 S.Ct. 1463 (defendant “misapprehended the quality of the State’s case”); ibid, (defendant misapprehended “the likely penalties”); ibid, (defendant failed to “anticipate a change in the law regarding” relevant “punishments”); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (counsel “misjudged the admissibility” of a “confession”); United States v. Broce, 488 U.S. 563, 573, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (counsel failed to point out a potential defense); Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (counsel failed to find a potential constitutional infirmity in grand jury proceedings). It is difficult to distinguish, in terms of importance, (1) a defendant’s ignorance of grounds for impeachment of potential witnesses at a possible future trial from (2) the varying forms of ignorance at issue in these cases.
Id. at 630-31, 122 S.Ct. 2450.
Here, the defendant argues that his guilty plea was not “knowing” and “intelligent” because he misjudged the burden of proof that the government would have had to meet, with respect to drug quantity, if the case had gone to trial. The majority erroneously agrees, stating that Villalobos “could not properly evaluate the risks of entering the plea agreement.” Supra at 1075. The correct answer to defendant’s argument is to reject it based on the Supreme Court’s decision in Ruiz. The form of ignorance alleged here by Villalobos, like that in Ruiz, is entirely indistinguishable from a defendant’s ignorance about such relevant circumstances as the quality of the government’s case, the admissibility of a piece of evidence, or the credibility of the government’s witnesses. While a more complete understanding of the burden of proof might help the defendant make a “wiser ... decision” about the likely consequences of a plea, it is enough here that the defendant understood in general how the waiver of proof of drug quantity applied, even if he did not understand the specific detailed consequences of the waiver. I conclude that the Supreme Court’s decision in Ruiz requires us to hold that even if a defendant does not know whether drug quantity must be proved beyond a reasonable doubt, that lack of knowledge does not prevent a plea from being “knowing” and “intelligent.” The record here demonstrates that the conviction rested upon a knowing and intelligent plea supported by sufficient