Lead Opinion
Affirmеd by published opinion. Judge KING wrote the majority opinion, in which Judge TRAXLER joined. Judge LUTTIG wrote a concurring opinion.
Appellant Juan Martinez challenges his convictions and sentence in the Middle District of North Carolina on one count of conspiring to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846, and on four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1). Martinez makes two basic contentions on appeal: first, that the district court, in four separate contexts, committed reversible error in accepting his guilty pleas, and, second, that the statute which forms the object of his conspiracy conviction, 21 U.S.C. § 841, is unconstitutional in light of Apprendi v. New Jersey,
I.
On May 25, 1999, Martinez, who was also known as Roberto Gonzalez and Jesus Garcia, was indicted, along with five others, on various charges relating to a drug distribution scheme in North Carolina and elsewhere. The indictment сontained sixteen counts, eight of which (Count One plus Counts Eight through Fourteen) were against Martinez. In Count One, Martinez and his co-defendants were charged with conspiring, in violation of 21 U.S.C. § 846, to commit offenses involving controlled substances, that is, the distribution of cocaine and marijuana, in violation of’ 21 U.S.C. § 841(a)(1). The remaining seven charges against Martinez related to violations of the money laundering statute, 18 U.S.C. § 1956(a)(1). The grand jury issued a superseding indictment a month later, which changed Count One only and named two additional co-conspirators. The superseding indictment, which is the operative charge in this appeal (the “Indictment”), made no substantive changes to the eight charges levied against Martinez.
On November 29, 1999, the Government and Martinez entered into a plea agreement, which was filed with the court on that same day. The plea agreement provided, inter alia: (1) that Martinez would plead guilty to the conspiracy charge (Count One) and to four separate charges of money laundering (Counts Nine, Ten, Twelve, and Fourteen); (2) that Martinez faced (a) on Count One, a minimum sentence of ten years’ imprisonment, a maximum possible sentence of life, and a maximum possible fine of $4 million; and (b) on each of the money laundering charges, a maximum possible sentence of twenty years’ imprisonment and a maximum possible fine of $500,000; (3) that, upon acceptance by the court of the guilty pleas tendered by Martinez, the Government would not oppose Martinez’s motion to dismiss the three other money laundering counts against him (thereby reducing his exposure to prison by a total of sixty years and his exposure to fines by the sum of $1.5 million); and (4) that the Government would recommend to the district court a decrease in Martinez’s offense level by 1 additional level pursuant to § 3El.l(b)(2) of the Sentencing Guidelines, if Martinez qualified for a 2-point decrеase in offense level under § 3El.l(a), and if his offense level prior to the operation of § 3El.l(a) was 16 or greater ,
Pursuant to the provisions of Rule 11(c), the court informed Martinez that, on the conspiracy charge in Count One, he faced a mandatory minimum sentence of ten years’ imprisonment, a potential maximum sentence of life, and the imposition of a fine of up to $4 million. He was further informed by the court that the maximum possible sentence оn each of the money laundering charges was twenty years’ imprisonment plus a fine of $500,000. Martinez acknowledged his understanding of the penalties he faced on the charges against him by virtue of his guilty pleas. The court also advised Martinez that it was not bound by the terms of his plea agreement with the Government, and that the final disposition of his case rested solely with the court. The court informed Martinez that the Indictment did not, in Count One, allege specific amounts of marijuana or cocaine, and it advised Martinez that the quantity of controlled substances involved in Count One would be determined at sentencing. Martinez acknowledged to the court, under oath, his understanding of all these matters.
Before concluding the Rule 11 proceeding, the court inquired whether the Government intended to present a factual basis for the guilty pleas. When the Government requested that the factual basis be withheld until sentencing because it was lengthy, the court acceded to its request.
On March 3, 2000, the district court conducted Martinez’s sentencing proceedings. In these proceedings, the Government made no objection to the Presen-tence Report (“PSR”) of the Probation Officer, and Martinez did not contest the drug quantities determined in the PSR. The PSR determined that Martinez was accountable, under Count One, for 10,000 grams of cocaine hydrochloride and 317,-520 grams of marijuana. Martinez also agreed to the criminal history upward departure recommended in the PSR. The district court found that an offense level of 35 and a criminal history category of IV applied to Martinez. The court then sentenced Martinez to 235 months’ imprisonment (nineteen years and seven months) plus five years’ supervised release on the conspiracy charge. He was
Six days later, on March 9, 2000, Martinez filed in the district court a pro se motion, entitled “Motion to Withdraw Counsel,” in which he indicated dissatisfaction with the work of his court-appointed lawyer, and by which he requested that a new lawyer be appointed for the appeal of his case. This pro se motion was deemed by the district court to constitute a notice of appeal.
In the wake of Apprendi, which was decided prior to briefing in this case, Martinez altered the nature of his appeal.
II.
Before we address the merits of Martinez’s contentions, we must consider a predicate procedural issue concerning the applicable standard of review. Because Martinez did not seek to withdraw his guilty plea in the district court, we review his alleged Rule 11 errors under the standard applicable to forfeited error, i.e., assertions of error raised for the first time on appeal. The courts addressing this question disagree over whether such assertions are to be reviewed under a plain error standard or a harmless error standard. This question is one of first impression in our circuit, and we must resolve the question before we consider the substance of Martinez’s Rule 11 claims.
As a general proposition, of course, it is well established that forfeited error is reviewed under a plain error standard. See Fed.R.Crim.P. 52(b) (“Plain errors оr defects affecting substantial lights may be noticed although they were not brought to the attention of the court.”); United States v. Olano,
Under the provisions of Rule 11(h), errors in plea proceedings are normally evaluated under a harmless error standard. Fed.R.Crim.P. 11(h) (“Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.”); see United States v. DeFusco,
Several of our sister circuits have addressed this issue, and they disagree on the question of whether harmless error or plain error analysis governs. A majority, consisting of the First, Sixth, Seventh, and Eleventh Circuits, have concluded that the plain error analysis of Rule 52(b) repre
The courts considering the question of the proper standard of review on Rule 11 issues have generally agreed that, prior to the promulgation of Rule 11(h) in 1983, there was some confusion over what constituted reversible error under Rule 11. The Supreme Court’s decision in McCarthy v. United States,
The courts addressing the standard of review question disagree, however, on whether Rule 11(h) merely incorporated the general standards of review established in Rule 52, or whether Rule 11(h) established a unique standard of review to be applied only in the Rule 11 context. The сircuits supporting the proposition that plain error review governs, in particular the First and the Seventh Circuits, stress that “Rule 11(h) was added by amendment for a narrow purpose,” i.e., it was to demonstrate that Rule 52 applied to Rule 11 errors. Gandia-Maysonet,
The First and Seventh Circuits contend, for example, that employing the traditional “ ‘raise or waive’ principle, here as with other kinds of error, serves obvious interests of fairness and judicial economy.” Gandia-Maysonet,
After evaluating these competing positions, we see the plain error approach as most compelling. Significantly, the Advisory Committee Notes on Rule 11(h) suggest that Rule 11(h) should not be viewed as establishing a unique standard of review for Rule 11 errors. Indeed, the Advisory Committee began its discussion by observing that “[subdivision (h) makes clear that the harmless error rule of Rule 52(a) is applicable to Rule 11.” Advisory Comm. Notes to Fed.R.Crim.P. 11(h), 1983 Amendment. The Committee further observed that the considerable disagreement over the effect of the Supreme Court’s McCarthy decision occurred “[njotwith-standing the declaration in Rule 52(a) that ‘[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.’ ” Id. These statements by the Committee, although not directly concerned with Rule 52(b), indicate that the Committee’s goal in enacting 11(h) was in part to demonstrate that error under Rule 11 was no different from any other error, and that it was governed by the same standard of review. The Advisory Committeе made no suggestion that Rule 11 errors should enjoy some special status, or that such errors are entitled to be reviewed under a unique standard. In fact, the Committee closed its commentary on Rule 11(h) with the following statement, rebutting the idea that Rule 11(h) somehow differentiated Rule 11 errors from other errors in criminal proceedings:
It must also be emphasized that a harmless error provision has been added to Rule 11 because some courts have read McCarthy as meaning that the general harmless error provision in Rule 52(a) cannot be utilized with respect to Rule 11 proceedings. Thus, the addition of subdivision (h) should not be read as suggesting that Rule 52(a) does not apply in other circumstances because of the absence of a provision comparable to subdivision (h) attached to other rules.
Id. (emphasis in original). Thus, pursuant to the foregoing analysis, we are convinced that Rule 11(h) does not require a unique standard of review for Rule 11 errors.
A structural analysis of the two standards of review also supports our adoption of the plain error approach. The distinction suggested by the Ninth Circuit is premised on the concept that there is a difference, for standard of review purposes, between rules that bind a judge’s conduct and rules that convey rights to a defendant. The Supreme Court, however, made no such distinction in United States v. Olano,
The considerations relied upon by the First and Seventh Circuits weigh heavily in favor of the plain error approach. As those courts observed, the interests of judicial economy are far better served by a plain error standard of review. United States v. Driver;
Consistent with these textual and structural considerations, we are unable to recognize an exemption under Rule 11 to the Rule 52(b) analysis for forfeited error. As such, we will review Martinez’s Rule 11 claims for plain error.
III.
Having concluded that plain error is the appropriate standard, we will now apply it to Martinez’s contentions, and we must determine whether any of his claims of Rule 11 error meet the exacting requirements of plain error review. Before doing so, however, we will first assess the impact of the Apprendi decision, and the impact of our related decisions in United States v. Promise,
A.
In its Apprendi decision in June of 2000, the Supreme Court concluded that Chаrles Apprendi’s due process rights had been violated when, because the state trial court found by a preponderance of evidence that Apprendi had committed criminal activity with a racially biased purpose, he received a penalty exceeding the statutory maximum for the crime for which he had been convicted.
In our en banc Promise decision earlier this year, we had occasion to apply Ap-prendi to charges under 21 U.S.C. § 841. We observed that § 841(a) specifically “prohibits, inter alia, possession of controlled substances with the intent to distribute them,” while § 841(b)(1) “sets forth various penalties that vary according to, inter alia, the quantity of the particular controlled substance at issue.” Promise, 255 F.3d at 156 (Wilkins, J., joined by Widener, Williams, Michael, Motz, Traxler, and King, JJ.) (emphasis omitted). We further noted that “an individual who possesses with the intent to distribute an identifiable but unspecified quantity of [controlled substances]” faces a maximum sentence of twenty years, and that “[a] sentence exceeding 20 years may be imposed only upon an additional finding that the offense involved a specific threshold quantity of a schedule I or II controlled substance.” Id. We therefore determined that “in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense.” Id. Thus, Promise made clear that § 841 constitutes a multi-offеnse statute, with the baseline offense being drug distribution without a quantity finding, § 841(b)(1)(C), and with multiple aggravated offenses containing the additional element of a particular threshold quantity of drugs.
In this case, as in Promise and Cotton, Count One charged Martinez with conspiring, under 21 U.S.C. § 846, to violate § 841(a)(1). Although Count One alleged that Martinez was charged with conspiracy to violate § 841(b)(1)(A), it contained no allegation of drug quantity. It therefore charged a conspiracy to violate § 841(b)(1)(C), and, under the reasoning of Apprendi Promise, and Cotton, the district court possessed jurisdiction over Martinez for that crime only. Thus, because the court possessed jurisdiction over Martinez for the conspiracy to violate § 841(b)(1)(C), it could only conduct plea proceedings and sentence Martinez for that offense.
B.
We now review Martinez’s contentions to determine whether error occurred as required by United States v. Olano,
We first examine whether Martinez’s contentions of error are valid. Martinez alleges four separate errors occurred in his Rule 11 proceedings: (1) that the court incorrectly informed him of his potential sentence; (2) that the court failed to properly inform him of the elements of the conspiracy charge; (3) that the court failed to inform him that, if it rejected the Government’s sentencing recommendation, he could not withdraw his guilty pleas; and (4) that the court did not determine the existence of a factual basis for his guilty
1.
Martinez’s first contention, that the court incorrectly informed him of the permissible sentence for the conspiracy charge in Count One, is, in light of the post-plea decision of the Court in Apprendi, a meritorious one. Under Rule 11(c)(1), the district court is obliged to inform the defendant of any mandatory minimum penalty and the maximum possible penalty provided by law for the charged offense. For conspiring under § 846 to violate § 841(b)(1)(C), we now know, in light of the trilogy of Apprendi, Promise, and Cotton, that Martinez faced no mandatory minimum sentence and that he faced a maximum potential sentence of twenty years’ imprisonment. Consistent with the plea agreement, however, the district court incorrectly informed Martinez, prior to Apprendi, that he faced a mandatory minimum sentence of ten years’ imprisonment and a maximum possible sentence of life. In these circumstances, this advice to Martinez on his potential sentence on Count One was incorrect. Therefore, error was committed in this respect.
2.
Martinez’s second contention with respect to his Rule 11 plea proceeding, that he was not properly informed of the elements of the conspiracy charge, is without merit. Before accepting a guilty plea, “a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered.” United States v. DeFusco,
3.
Martinez’s third allegation of Rule 11 error, that he was not properly informed that the court’s failure to accept the Government’s sentencing recommendation would not constitute grounds to withdraw from the plea agreement, has merit. Under the provisions of Rule 11(e)(2), if a plea agreement involves a recommendation by the Government under Rule 11(e)(1)(B), the district court “shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.” Fed.R.Crim.P. 11(e)(2) (emphasis added).
While the district court need not recite verbatim the advice required by Rule 11(e)(2), it must substantially inform the defendant of and determine that the defendant understands the admonition contained therein. The district court here merely informed [the defendants] that it was not bound by any recommendations, and we decline to hold that such an instruction substantially informs a defendant that he or she has no right to withdraw his or her plea if the district court does not accept the sentencing recommendation.
4.
Martinez’s final allegation of Rule 11 error, that the district court faded to ascertain that a factual basis existed for his gudty pleas, has no merit. Under Rule 11(f), “[n]otwithstanding the acceptance of a plea of gudty, the court should not enter a judgment upon such plea without making such inquiry as shad satisfy it that there is a factual basis for the plea.” Fed. R.Crim.P. 11(f). In essence, Rule 11(f) “ensures that the court make clear exactly what a defendant admits to, and whether those admissions are factuady sufficient to constitute the alleged crime.” DeFusco,
We review the court’s finding of a factual basis for a gudty plea for abuse of discretion. We cannot find error so long as the district court could reasonably determine that there was a sufficient factual basis. Mitchell,
C.
The district court accordingly erred in Martinez’s Rule 11 proceedings in two respects, i.e., first, by incorrectly advising Martinez that he faced a mandatory minimum sentence of ten years and a maximum possible penalty of life imprisonment on Count One, and second, in failing to specifically advise Martinez that he would not have cause to withdraw his guilty pleas if the court rejected the Government’s sentencing recommendation. We must next ascertain whether those errors were “plain.” An error is plain under Olano if, at the time of appeal, “the settled law of the Supreme Court or this circuit establishes that an error has occurred.” United States v. Promise, 255 F.Sd 150, 160 (4th Cir.2001) (en banc) (quoting United States v. Neal,
D.
We next consider the third prong of Olano, and we must decide whether Martinez has shown that the two errors affected his substantial rights. The Court in Olano observed that an error will affect a defendant’s substantial rights if it is prejudicial, i .e., “[i]t must have affected the outcome of the district court proceedings.” Olano,
Applying these legal principles, Martinez has failed to show that the two errors in his Rule 11 proceedings, either individually or cumulatively, affected his substantial rights. First of all, Martinez is unable to satisfy his burden with respect to the court’s Rule 11(c)(1) error, i.e., its misstatement of the potential penalty on the conspiracy charge. Martinez contends that his incorrect conception of bis poten
In addition, the eight separate criminal charges against Martinez meant that he faced a potential sentence far exceeding twenty years. In fact, each of the seven money laundering counts, under 18 U.S.C. § 1956(a)(1), carried a potential separate sentence of twenty years’ imprisonment plus a fine of $500,000. Under the Indictment, Martinez therefore faced 140 years’ imprisonment and $3.5 million in fines, independent of any penalty under Count One. Thus, even if he had properly perceived his penalty under Count One, Martinez faced the choice of proceeding to trial on eight charges with a potential maximum penalty of 160 years’ imprisonment and $7.5 million in fines, or accepting a plea agreement which reduced his potential exposure to prison by sixty years, reduced his financial exposure by $1.5 million, and required the Government to recommend that the court decrease his prison sentence. Thus, even if Martinez had been correctly advised of the permissible penalty on the conspiracy charge, there is no reason to believe that he would have sought to withdraw from the plea agreement. Martinez therefore fails to demonstrate that the district court’s violation of Rule 11(c)(1) affected his substantial rights.
Martinez also fails to satisfy his burden under Olano with respect to the district court’s violation of Rule 11(e)(2), i.e., its failure to advise Martinez that he could not withdraw his pleas if the district court rejected the Government’s recommendation. Although he claims not to have known that a rejection of the Government’s sentencing recommendation by the district court would not give him cause to withdraw his guilty pleas, Martinez was informed by the court, prior to entering his guilty pleas, that the court was not bound by the recommendation of the Government. Therefore, for Martinez to prevail on this point, he must demonstrate that he would not have entered into his plea agreement if he had known that the court’s rejection of the Government’s sentencing recommendation would not give him cause to withdraw. See McCarthy,
Even when reviewed under the cumulative error doctrine, Martinez is unable to carry his burden of persuasion. The relevant inquiry under that doctrine is whether, absent both errors, Martinez would still have entered into the plea agreement. Although the cumulative impact of the errors exceeds their impact individually, Martinez is nevertheless unable to demonstrate that his substantial rights were аffected. Even if Martinez had been properly advised by the court with respect to his potential sentence and his inability to withdraw from the plea agreement if the Government’s recommendation were rejected, he still faced the choice of proceeding to trial on the charges against him — facing a potential sentence of 160 years’ imprisonment and $7.5 million in fines — or accepting a plea agreement which reduced his exposure to prison by sixty years and his financial exposure by $1.5 million. Martinez offers no support, and none is found in the record, to suggest that he would have rejected the plea agreement under those circumstances. Therefore, even under the cumulative error doctrine, Martinez fails to satisfy his burden of persuasion under Olano.
Because Martinez is unable to satisfy the third prong of Olano, we need not reach Olano’s fourth requirement, i.e., whether this Court should exercise its discretion to notice plain error.
IV.
For the foregoing reasons, Martinez’s challenges to his convictions and sentence are without merit, and we affirm.
AFFIRMED.
Notes
. Pursuant to § 3E1.1 of the Sentencing Guidelines, a defendant can receive a reduction in offense level for acceptance of responsibility. Under § 3El.l(b), a defendant who has already qualified for the initial decrease in offense level under § 3El. 1(a) and who has committed a sufficiently severe crime will receive an additional decrease in offense level if it is determined that he gave certain types of
. Plea proceedings are governed by the provisions of Rule 11 of the Federal Rules of Criminal Procedure.
. Rule 11(c) provides for the following "Advice to Defendant” in plea proceedings:
Before accepting a plea of guilty or nolo contendere, the court must аddress the defendant personally in open court and inform the defendant of, and determine that the defendant 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, including the effect of any special parole or supervised release term....
.Rule 11(f) mandates that "[njotwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.” Because judgment is not entered until after sentencing, a court may defer the finding of a factual basis for the plea until that time. United States v. Mitchell,
. The court, after determining that Martinez lacked the ability to pay, did not impose a fine on him.
. As a notice of appeal, Martinez's motion of March 9, 2000, was pre-mature because the district court did not enter its judgment until March 16, 2000. Under Rule 4(b)(2) of the Federal Rules of Appellate Procedure, however, "[a] notice of appeal filed after the court announces a decision, sentence, or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” In any event, a second notice of appeal was filed on Martinez’s behalf on March 20, 2000.
.Martinez is able to raise Apprendi issues on appeal because newly declared constitutional rules are applicable to criminal cases pending on direct appeal. Griffith v. Kentucky,
. In United States v. Goins,
. The error at issue in Olano was the district court’s failure to comply with the pre 1999 version of Rule 24(c) of the Federal Rules of Criminal Procedure, which mandated that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.”
. Perhaps the best argument in favor of the harmless error approach is that the title to Rule 11(h), "Harmless Error”, implies that assertions of Rule 11 error should be treated differently from other contentions of error in federal criminal proceedings. This point, however, is undercut by the plain language of Rule 11(h), which provides that error "which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 11(h). A plain error standard of review by definition requires the reviewing court to disregard errors that do not affect substantial rights; thus, employing a plain error standard would not contravene the plain language of Rule 11(h). Put another way, the provisions of Rule 11(h) do not mаndate a specific standard of review; instead, they fix a threshold level of review that must be satisfied.
. Apprendi had pleaded guilty, in New Jersey state court, to two counts of second degree possession of a firearm for an unlawful purpose, and to one count of third degree possession of an antipersonnel bomb. Apprendi,
. It is clear, in the aftermath of Apprendi, Promise, and Cotton, that the parties and the court erroneously believed that Count One charged a conspiracy to violate § 841(b)(1)(A), a crime which carries a mandatory minimum sentence of ten years' imprisonment and a maximum possible sentence of life. The grand jury, however, charged the elements of a conspiracy to violate § 841(b)(1)(C), which carries no mandatory minimum sentence and a maximum possible sentence of twenty years’ imprisonment, thereby conferring on the district court only the authority to hear and sentence under that offense. Martinez's sentence of 235 months’ imprisonment, however, did not exceed the maximum authorized for conspiring to violate § 841(b)(1)(C), which is 240 months' imprisonment. Therefore, any such misapprehensions do not constitute error with respect to either Martinez’s indictment or sentence. United States v. Angle,
. A rеcommendation by the Government comes within the scope of Rule 11(e)(1)(B)
. In addition, the district court accepted the Government's sentencing recommendation and gave Martinez a three-level adjustment for acceptance of responsibility. Thus, Martinez received everything that he could have expected to receive under the plea agreement.
. In addition to his allegations of Rule 11 error, Martinez asserts that 21 U.S.C. § 841 is unconstitutional in light of Apprendi because it removes facts that increase the prescribed range of penalties from the province of the jury, and it allows those facts to be established by a pre-ponderance of the evidence. We review de novo a challenge to the constitutionality of a federal statute. United States v. Buculei,
Concurrence Opinion
concurring:
In United States v. Promise,