United States v. Kerby Keller

HUNTER, Before ALDISERT and Cir Judges, STEEL,* cuit Judge. District OPINION OF THE COURT PER CURIAM: Kerby from appeals Keller denial presentence his motion to withdraw his final plea and from the against conviction entered him. Keller con- contrary tends that to Rule Fed.R. Crim.P., he at the was told time his accepted was sentence could receive. Because we believe that Kel- adequately ler informed of nature precise language set by Congress, forth we affirm. On pleaded November 1977 Keller guilty in conspiracy federal district court to manufacture, distribute, possess with manufacture, distribute, the intent to possess drug, methampheta non-narcotic mine, 841(a)(1) in violation of 21 U.S.C. § (1976).1 sentencing, Before Keller filed * Jr., Steel, (a) Except subchapter, Honorable Edwin D. as authorized Judge Delaware, District person knowingly for the District of sit- it shall be unlawful ting by designation. intentionally— or manufacture, distribute, dispense, or possess manufacture, (1976) provides or with intent Section 841 of distrib- Title ute, dispense, substance; part: controlled Attorney: Excuse The United guilty plea. motion to withdraw On a non-nar- me, Methamphetamine April 18, motion was denied. Kel 1978 his five II, it would be cotic schedule so ler sentenced $15,000 and/or fine. that for viola 841(b)(1)(B). provides It $15,000 involving a non-narcotic The Court: Five tions of the statute drug, maximum sentence shall im fine? years, a

prisonment Yes, of more than five Attorney: not The United States $15,000, or years special pa- fine not than both. of more not less than two And Further, a “[a]ny imposing sentence term of role. shall,

imprisonment paragraph this in under I corrected. Alright. stand' The Court: conviction, prior impose of the absence such So, years five sentence is years special of at 2 in parole $15,000 fine, a term least plus years spe- two imprisonment” term of expiration addition to such to at the cial commence (emphasis supplied).2 The district court App. at 16. any jail sentence. of imprison years to four sentenced Keller Walden, cites States 578 Keller years special parole. two plus ment establishing (3d as that F.2d 966 Cir. 841(b) spe- 21 authorizes appeal from the of On Walden, he light claims parole. conviction, rights that his Keller contends failure to judge’s district court that the 11(c)(1)3 were violated at the under Rule potential for lifetime inform him the First, guilty plea accepted.4 time his was right his to be told special parole violated only the asserts he told that Keller that However, Walden, the maximum sentence. special parole a term of provides statute circuit, was impression a first in this case of years,” “at least two when the plea guilty the collo- not until after decided he could have received sentence which challenged quy here. parole. special might have included lifetime Second, Keller that was not told asserts stat When Keller was informed “personally” by the district court parole special ute term of “not authorized a objections years,” his maximum sentence. Both court was less than two district exchange following authority be of United operating arise out under the 1976).5 Crusco, (3d F.2d court 536 21 tween the district U.S. States Judge panel, a Ro- Writing for unanimous Attorney: ll) charge Except provided (b) to which the in the nature of the as otherwise section mandatory pen- title, offered, any person plea is minimum 845 of this who violates sub- law, (a) alty provided by any, the maxi- as section this section shall be sentenced provided follows: law. mum (1) . . . 1) appeal that he was 4. Keller also contends (B) In the a case of controlled substance in penal- mandatory minimum drug schedule I or II which not a narcotic ty charge to which nor nature of the or case of controlled substance in 2) plea district court was entered and that the III, person schedule such shall sentenced denying pre-sentence erred in his motion to imprisonment a term of more 5 of not than plea possible prejudice where withdraw no $15,000, years, fine a of not more than government to the could result. We have con- Any imposing . a both. . find these two contentions and them sidered imprisonment paragraph term of under merit. be without shall, prior in the absence of a convic- such tion, impose special a at least prior amendments 5. arose to the 1975 Cruseo imprison- 2 addition such term required when the rule ment “con- court inform the defendant supra. See note sequences plea.” As under amended rule, phrase interpreted to Fed.R.Crim.P., 11(c)(1), provides: 3. Rule of the maximum sen- the defendant be advised accepting (c) Advice to Defendant. Before Berry possible. v. United tence or nólo contendere the court must (3d 1969). F.2d open address the defendant court of, inform that he and derstands, him determine un- following: uphold it this circuit would senn held that was error to tell sentence of that that, under the harsher sentenc duration this case.7 Cf. United 841(b)(1)(A), terms he faced a ing Hawthorne, Cir.), of section (3d 532 F.2d cert. less “special parole term of not than three denied, facts, years.” On Id. similar (1976) (district L.Ed.2d 177 circuit in 583 F.2d proceeding “properly refused to render informing held that advisory opinion prior to trial subject that he would be might dimensions of the sentence which special parole term of at least three imposed on convictions all counts of custody, “adequately on his release from indictment”). explained special parole term.”6 Id. at alternatively Keller contends that he was 675-76. Cf. Roberts v. “personally” by 1974) (must F.2d inform de might that his sentence include possibility special parole fendant of of at years special parole.8 least two Keller term). judge’s claims that the misstatement of Moreover, a Walden was not Rule 11 case. despite proper maximum sentence a recita affirming conviction, In the defendant’s Attorney tion the U.S. entitles him to rejected court this his contention that life- guilty plea: withdraw his special parole was time not authorized Yes, Attorney: The United States statute. We also held that in the “circum- years special than pa- And less two case,” stances of the sentence did not [that] role. punishment. constitute cruel and unusual I Alright. The Court: stand corrected. 578 F.2d at 972. The of issue whether a So, the maximum sentence is five at defendant must be informed the Rule 11 $15,000 fine, plus years spe- two proceedings possibility expiration to commence at the special parole was not before us. any jail 16). of (App. sentence. at adequate- We hold that the district court ly This circuit insists on strict informed the defendant com maximum pliance requirements with the by using precise language of States, (3d rendering statute. Without 583 F.2d 670 advisory opinion, appeal judg could no more. To and from a do showing prejudice to have Keller ment of conviction no maximum is required sentence under section where the defendant demon might special parole include a lifetime strates that Rule 11 was violated his at term be guess, to ask him to in a guilty plea colloquy. McCarthy hypothetical him, case not before whether U.S. 21, 1978, February The defendants in both Crusco and until three months after the involving Moreover, were colloquy convicted of offenses a narcotic here. the dis- drug. They were sentenced under 21 suggestion U.S.C. de- trict court’s in Holland that a 841(b)(1)(A) § which authorizes a “possibility be fendant advised of the of an ” imprisonment years, of not more than fifteen a ‘special parole unlimited consecutive term’ $25,000, fine not more than both. only 841(c), under 21 could be § U.S.C. dicta conviction, prior a absence of opinion charged since Holland with may subject special parole also be a robbery kidnapping, drug bank a of- years. least at three fense. We do not understand the dissent imply judgment that a a order affirmance of 7. The dissent cites Holland v. United court district makes the dicta in F.Supp. (E.D.Pa.1977), n.11 aff'd accompanying opinion law by judgment order, 571 F.2d 571 this circuit. establishing adopted, had circuit prior guilty plea colloquy challenged to the Fed.R.Crim.P., that, 11(c), requires 8. Rule “the here, the rule that a defendant must be advised court must address the defendant proceeding in the open supra (emphasis sup- court.” See note 3 special parole. initially, We note how plied). ever, this court did not affirm Holland by law” However, penalty provided maximum if no case (1969).

L.Ed.2d found, us has under which is to has cited to statute which Keller here, alleged specifies pen- a viola no facts those sentenced similar guilty plea Generally, Rule 11. tion of alty; and judge has where the withdrawn 11(c), requires that “the which Attorney duty to delegated the U.S. person- address the defendant Court must defendant, prior to the Rule 11 inform the ally,” is United States satisfied rights. Wood of the defendant’s colloquy, Attorney informs the defendant of the 426 F.2d 959 ward statutory penalty. Hart, Accord, 1970). directly The has never been point first Here, 1978). U.S. F.2d 977 Nevertheless, by this Court. settled open stated rule, legislative history, its reason for the language sec precise parole term and the in other circuits are decisions court, in re tion While the district of the majori- variance with the conclusion sentence, did part of the entire peating one represents a point second tacit ty. The Attorney, quote the exactly rejection of decisions in circuit. judgment of conviction reverse Keller’s guilty plea allow him withdraw was sentenced under facts, ri would, impose an undue on these 841(b)(1)(B). Although the statute hearing complete on the Rule gidity person sentenced under this states that purpose. its See United States ly distort “special term of at section faces (9th Cir.), O’Donnell, 1233, 539 1235 F.2d years,” substantially least 2 a identical stat- 386, denied, 960, 97 S.Ct. 50 cert. has to authorize a life- interpreted ute been (1976) (“rule 11 not re 328 does L.Ed.2d parole. special time sentence of Cf. United any the district court observe quire that Walden, 966, (3d 972 F.2d Cir. States v. 578 ritual”). dis particular We hold 1978) (holding 841(b)(1)(A) au- that section adequately discharged judge trict court term). special parole thorizes a lifetime obligation personal to advise “the 11(c)(1) Rule mandates that court” hence, sentence, and we ly of the maximum advise the defendant of of Rule 11. find no violation by penalty provided possible “maximum the district court will be judgment of The say “statutory not law.” The rule does affirmed. law”, exception limit nor does it contain statutory law. It is ing application its to STEEL, Judge,' dissent- Senior District a just important as for defendant to ing: he advised of the maximum sentence to importance of this case the admin- The silent on the receive when the statute is particular- justice, and istration of criminal specifies the subject as when the statute duty ly to the of a district enough a It is for defend maximum. accepting plea, impels me to file this 11 in a sentencing given simply to advice ant dissent. specifies a language of a statute which holds, a majority The Court required. Unless he is minimum. More is law, that: maximum, matter so intelligent election whether 11(c)(1) cannot (1) Rule does make plead of “the to or to trial.1 Court to advise the defendant stand law, by any, possi- Advisory and the maximum vided notes of the Committee provided explains law the offense to ble Rules that: objective plea is to which the is offered.’ The required Former 11 the court to inform what that a knows mini- insure defendant ‘consequences the defendant of impose mum sentence the must changes plea’. (c)(2) Subdivision judge may im- what maximum sentence the requires inform the instead usually readily pose. as- This information determine that he under- defendant of and face of defin- certainable from the the statute penalty pro- mandatory ‘the minimum stands 944 States, Berry 189, “Questions

In brought v. United 412 F.2d ed it. ‘neither to the (3d 1969), 192 approval Cir. cited with upon Court nor ruled are attention States, 670, Horsley v. United 583 F.2d having been be considered as so ” (3d 1978) this Cir. Court stated that precedents.’ Soy decided as constitute designed mandate of “is insure 303, (3d Alldredge, ka v. 481 F.2d Cir. pleader that the aware made outer 507, Fall, 1973), citing v. Webster U.S. punishment.” limits In Roberts v. Unit 511, 148, (1925); L.Ed. Ma S.Ct. States, 1236, 1238(3d 1974), ed Cir. F.2d 1018, honey Waddle, (3d v. 564 F.2d States, 192, citing Berry at denied, 904, Cir. cert. emphasized “[wjhen en one 3122, (1978). Horsley 57 L.Ed.2d 1147 ters a plea guilty he should be told what simply, addressed itself to the issues before expect. plea is the worst to At the he is it, not presently issues before this entitled no less—at sentence he should Court. expect no more.” In United Crusco, United States v. 536 F.2d 21 States, supra, the Court reiterated upon by also relied the majority, importance “the extreme to the defendant is likewise irrelevant. knowing range potential sen tences.” Various have addressed in circuits requires Rule 11 the district court issue, stant and have held that to inform the mandatory defendant that a court, accepting when a to an special parole term attaches to offense in of 21 violation must imposing imprisonment prior term of explain subject to the that he is accepting plea. Roberts United special to the of a lifetime supra. In present case this was done. term. See Richardson v. United held, however, This Court has never 1978); F.2d 451-52 possi- need not be advised of the Palter, 1050, 1051(2d 575 F.2d bility special parole. 1978); Alejandro, United States v. 569 F.2d majority, relied on did 1978); 1201-02 Horsley, simply not so hold. this Court Jones, 465, (10th 1976), v. 540 F.2d 468 held informing that the defendant that denied, 1101, 1125, cert. 97 S.Ct. 51 “there a special parole term of at least (1977).2 L.Ed.2d 551 I would that hold the years” three an adequate expla- constituted possible penalty” “maximum referred to in nation the special parole term. An ex- possible special includes a lifetime Horsley amination of the in. briefs discloses parole term under section 841. that the the questioned defendant never holding In support of its the that trial adequacy explanation the ground the on judge not inform the defendant need about point that it special failed to out the possibility special parole the possibly could the life. Nor did opinion points out point. majority correctly in mention the that United Walden, expressly tacitly neither nor decid- v. was not decided States ing crime, it the the thus is feasible for ty today, judge does that the district court need judge specifically know what to tell pen- not inform the defendant maximum Giving defendant. this advice a defend- matter, tells alty when the statute is silent on this mandatory ant the shortest sentence also Congress’ expressed would be to frustrate in- longest possible sentence for the offense pleads tention to insure that the defendant who pleadingguilty, (emphasis to which he plea. has made an original) 2. But see Franklin v. United No. 75- Advisory The Committee notes indicate that 9, (4th August 1975), in 1312 Cir. filed which Congress recognized defining the statute informing Court held that defendant of always the crime state what maximum special length the minimum of the judge may impose. sentence the The Commit- was sufficient under Rule 11. The Court also tee notes Congress also indicate that did noted that because defendant’s sentence exempt intend to this situation from the re- significantly less than the allowable maxi- quirements hold, majori- of Rule 11. To as the mum, error, any, was harmless.

945 (1975); Rich, 285 United L.Ed.2d 11 chal- States proceedings until after the Rule 980, lenged transpired. On this fact 986-87 cert. here 518 F.2d have informed majority 907, 3193, reasons that “to denied, U.S. maximum sentence Keller that (1976). L.Ed.2d special might include a section requires that the 11(c) judge guess* him to parole term would be ask personally in open defendant “address the him, whether case not before hypothetical of, inform him and determine court and of that uphold this a sentence circuit understands,” penal- duration this case.” added). (emphasis ty. Informing pos that he faced a judge never The district court parole did not involve special sible lifetime potential max judge. guess-work part of the district record, The he faced. imum sentence that F.Supp. In Holland United Appen attached as are excerpts from which 733, 17, 1977), (E.D.Pa. Feb. aff’d 740 n. errone A, judge the trial dix discloses that the district 571 F.2d 571 stated, dictum, way ously by court stated “[w]e pen within the notion of ‘maximum United include the Assistant corrected requirement drug that a alty’ the Attorney stated States who possibility unlimited warned At the statute. language ‘special parole term’ under consecutive repeat point, attempted 841(c).”3 proceeding U.S.C. § had told Attorney what the United States in this case occurred on November issue him, erroneously. but so Even assum did 17, 1977, after nine months 11(c) only requires the district ing that Rule Contrary to the decision in Holland. court’s statutory language, state conclusion, informing Keller of majority’s satisfy did the rule for plea colloquy spe a lifetime 'the that he faced First, two reasons. recitation of statu not have forced the dis parole would tory penalty the Assistant United States opin advisory trict court render discharge the Court’s does not Instead, ion. Keller with that providing duty explain the maximum sentence to important have been in information would the defendant. See Woodward conformity with the statement Holland 1970).4 426 F.2d existing circuit and the then law of other Second, undisputably demon the record Jones, as well. courts See failed to strates that the trial 468-69; supra, at v. Rivera- statutory penalty at accurately state the (9th Cir.), Marquex, 519 F.2d 1228-29 colloquy. during time denied, cert. 96 S.Ct. proval by Horsley majority’s in respect this Court v. United 7 in the to footnote With opinion, States, Hol- supra, the does not contend that dissent at 676. must established the rule that a defendant land proceeding possi- be in a States, supra, the United Woodward Rather, bility special parole. Hol- Court stated: plea only prior the that land demonstrates requires Because Rule the court ad- that colloquy at here issue another personally, questioning dress defendant the Pennsylvania (where Keller of Eastern District by representa- the United States sentenced) recognized that was tion counsel will not of the should be advised of duty interrogate discharge the the court’s Consequently, majority special parole. is if the itself. concluding of a in that the articulation correct prejudice” an- Because the “automatic rule by a involves new rule of law district States, McCarthy in v. United nounced 459, any “guesswork,” guesswork evident it is 1166, 89 S.Ct. 22 L.Ed.2d 418 did part instant on district court the the the apply retroactively guilty plea greatly the the facilitated would have been case prior Woodward, guilty particularly plea teachings the examined the This is of Holland. Holland, voluntarily. which and that it was entered true because the dictum held ap- dissent, with cited to in was referred the 11(c) the mandatory5 To criticism that our and this Court decision exalts substance, over requires compliance with sub form we respond by strict its re- States, peating Supreme those words of Horsley stance. United su the See Court: 675; States, pra, at Brown v. United 862, 1977); is, therefore,

F.2d It Woodward v. not too much to that, States, Moreover, sentencing United 962-63. before defendants to years imprisonment, judges non-compliance when district the issue of with Rule necessary take the few minutes to in- appeal is raised on direct it is irrelevant rights form them of their and to deter- prejudice McCarthy whether resulted. See they mine the whether understand ac- States, 459, 1166, 89 S.Ct. tion they taking. McCarthy are (1969); L.Ed.2d 418 v. United States, supra, U.S. at Clark, supra; United States v. 89 S.Ct. at 1174. 1978). F.2d While this, recognizing majority nevertheless Because per- court failed to district per holds that district court’s failure to sonally advise the defendant of maxi- sonally advise defendant was fatal penalty subject- mum to which he be could because the Assistant ed for a United States Attor violation section be- ney accurately statutory penal recited the cause district failed to determine ty. majority’s penalty defendant understood only conclusion not con plea expose him, to which a rulings Court, tradicts the which plea be appellant’s guilty should vacated consistently upon have insisted strict adher permitted plead again he should be requirements ence to the of Rule but to the indictment. also suggests that the defendant show must prejudice in order successfully challenge APPENDIX A on appeal direct non court’s compliance with require Rule 11. Such a K. Keller contrary ment is law of this circuit. and, course, procedure doing n you See v. United supra, McCar is in violation of the law. Do under- thy supra. charged you That is are stand? what with. Furthermore, never de- Now, which the maximum sentence can termined that the defendant understood the imposed count is 35 and/or he might which receive $25,000 fine, plus addition to despite 11(c) the fact that requires imprisonment, years special three judge to make such a determination. Al- parole following prison. your release from though point raised in defend- you Do understand that? brief, ant’s nonetheless matter is so Yes. A. closely shortcomings related to the other Q. That is the maximum sentence which gave advice which the judge to defend- be imposed. could ant that it is- not inappropriate to note it. me, Mr. McBride: Excuse At colloquy the defendant was given Methamphetamine is a explanations three non-narcotic different II, it Schedule so would five only sentence. The advice which $15,000 fine. the defendant stated he understood given $15,000 erroneous advice The Court: judge to him Five and/or before fine? correct-

ed him. As this recently Yes, observed in Mr. McBride: sir. And not less years special parole. at 675: two than Congressional accept 5. guilty. Conference that defendant’s Committee House supports view, 94-A14, emphasized Rep. also Cong., as it Conf. No. 94th 1st Sess. 9 11(c) added), things (emphasis Cong. enumerates certain U.S.Code & p. tell a must can defendant before a Admin.News 674. right, All I stand corrected. The Court:

So, is five the maximum sentence $15,000fine, plus years spe- two expiration at the to commence any jail sentence. The Court:

By Keller, understand, Mr. Now,

Q. you do confes- like a it is by pleading more, and, without open sion in a sentence? impose can that?

youDo understand Yes, sir.

A. America, Appellee, STATES

UNITED FORSYTHE, Appellant in E.

Robert

No. 77-2609. BLASKOVICH,

Appeal J. of John

No. 77-2610. FRANCE,

Appeal of Edward J.

No. 77-2611. SNEE,

Appeal Edward T.

No. 77-2612.

Nos. 77-2609 to 77-2612. Appeals,

United States Court of

Third Circuit.

Argued Dec.

Decided Feb.

Case Details

Case Name: United States v. Kerby Keller

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 12, 1979

Citation: 594 F.2d 939

Docket Number: 78-1549

Court Abbreviation: 3rd Cir.