*1 instаnce, sup will not the record In this STATES, Appellee, treat as coercion UNITED effort to Flemmi’s
port held that he would be the assurances v. pri- The nisi prosecution. harmless from Federico, Jose SANTO a/k/a retaliation, of no threats us roll reveals Defendant, Appellant. Illinois, 528, see, 372 U.S. v. e.g, Lynumn (1963), 917, 534, 9 L.Ed.2d 83 S.Ct. No. 99-1899. see, Ro violence, e.g., United States Appeals, United States Court (1st 54, sario-Diaz, 69-70 Cir. First Circuit. consciously mis 2000), no evidence FBI part of the on the leading conduct 8, Heard June 2000. Swint, see, e.g., agents, Sept. Decided Cir.1994). (3d Flemmi 290-91 nor under investi incarcerated was neither promise, the asserted time of
gation at the friendly social- enjoyed a and he —even Connolly.
relationship with Morris totality the circum
Weighting Walton, must,
stances, see as we a matter of law we as conclude respect
that Flemmi’s statements voluntary. intercepts three
IV. CONCLUSION con- We have go need no further.
We and find arguments Flemmi’s
sidered all of therefore conclude wanting.
them ruling evidence stem- suppressing surveillance of
ming from the electronic Restaurant, and Street,
Prince Vanessa’s and must be is insupportable
Guild Street will, course, holding aside.
set for the district court any
obviate need to whether hearings further
conduct intercepted con- derived from
evidence jury grand to the presented
versations dis- should be
and whether indictment on that basis.
missed for further
Reversed and remanded with this
proceedings not inconsistent
opinion. *2 ,R. Twomey with whom
Jonathan Saxe & appel- Law Offices on brief for Sisti was -(cid:127) lant. Pelgro, Assistant United Michael J. K. Attorney, States with whom Donald Stern, Attorney, B. James Farmer, Attorney, Assistant United States Division, Chief, Hey- Stephen P. Criminal mann, Attorney, Assistant Division, Chief, Mi- Deputy Criminal Assistant United States Pelgro, chael J. appellee. for Attorney, were brief TORRUELLA, Judge, Before Chief CAMPBELL, Judge, and Senior Circuit SCHWARZER,* Judge. District Senior CAMPBELL, Judge. Senior Circuit pled Defendant-appellant Jose Santo drug conspiracy and other guilty to being incorrectly, as charges after told— statutory man- turned out—that he faced a only five datory minimum sentence of Later, determining that San- years. upon more than responsible to was initially сontemplated, subject the ten- him court sentenced applicable to the year * California, sitting by designation. Of the Northern District of went on an-
greater drug quantity. Santo contends parties nounce that the “will take the fol- the court’s understatement lowing positions sentencing under the penalty rendered his Sentencing Guidelines”: involuntary, as the error both United States provision Fed. express violated an *3 parties agree position The to take the requiring R.Crim.P. advice as the with counts connection penalty provided by is accountable for at least 100 Santo rights. law and also affected his substantial heroin, grams of that his Base Offense (h). 11(c)(1) (10CM00 and heroin), See Fed.R.Crim.P. grams Level is 26 of аgree, and allow Santo year the five and provision applicable. is agreed
After reference to an four-level I. upward adjustment being organizer an 3Bl.l(a), § or leader under U.S.S.G. 1998, December Santo and three On parties agreed position to take the charged conspira- co-defendants “safety provision inapplicable valve” heroin, § cy to distribute U.S.C. adjusted and that Santo’s offense level on heroin, and distribution U.S.C. parties counts was 30. The 841(a)(1). § charged with Santo was also agreed adjusted to an offense level of making false statements to a federal law counts, two false statements and to officer, § enforcement and U.S.C. accep- а three-level reduction for possible making passport ap- false statements in a of responsibility tance under U.S.S.G. Thereafter, § plication, 18 U.S.C. 3B1.1, § subject to certain conditions. signed plea agreement with the plea agreement The next contained a Attorney, United States which he section entitled “Sentence Recommenda- agreed plead guilty to all the counts tion,” which read as follows: “The U.S. against him the indictment and admitted Attorney takes no position at this time fact, was, that he of these each concerning his sentence recommendation offenses.1 before the district court ...” In this sec- parties agreed tion the there was no basis agreemеnt A. The plea for departure range from the established plea agreement included state- by sentencing guidelines, except possi- ment minimum and bly for assistance under One, penalties. maximum Count con- § fur- plea agreement U.S.S.G. 5K1.1. The spiracy charge, was said to have provided: ther a maximum of 40 and a By Agreement 7. Court Not Bound years, prison minimum of 5 in federal sentencing recommendations made parole, to be followed a term parties respective and their calcu- supervised years, release of at least 4 Sentencing lations under the Guidelines $2,000,000, up special a fine of binding upon are not the U.S. Probation $100,000. assessment of sentencing judge. or the Office Within Thе distribution counts were each the maximum sentence which said alia, law, provide, inter for a maximum of twen- under the faces sen- ty years imprisonment, imposed and the false state- tence to be is within the sole counts, alia, twenty years sentencing judge. ment inter discretion of the San- years respectively. plea pursuant to’s will be tendered court, plea agreement may 1. The bind the and the defendant not was of sort autho- 11(e)(1)(B), rized Fed.R.Crim.P. un- withdraw his should the court decline to government’s accept government's der which the recommendation or recommendation 11(e)(2). request. request See Fed.R.Crim.P. contained in does 11(e)(1)(B). may then turned to the Fed.R.Crim.P. guilty regard- guidelines: not withdraw his imposеd. is Nor of what sentence less Now, Pelgro I’ll ask Mr. [the Assistant because may Santo withdraw his Attorney] ... what he office or the sentenc- probation the U.S. range thinks the is in each case. I turn declines to follow the Sentenc- ing judge governs to him not because he or recom- ing calculations Guidelines is, figure I’ll out range, range what parties. mendations of the him, your I’ll I’ll but listen listen to I’ll I’ll attorneys, you, listen to listen to Rule 11 B. The officer, you but need to probation 22, 1999, con- the district court April On range that he Jcnoiv thinks the because *4 hearing pursuant change of ducted probably person looking he’s the who is of 11 for Santo and one to Fed.R.Crim.P. the most severe sentence. parties filed the his co-defendants. supplied.] government [Emphasis re- plea agreement written abovementioned sponded: that Mr. “[W]e believe Santo will court. The district court ex- with the out, come or we think come out at he’ll charges of the and the plained the nature government level 27 ...” total offense giving up by plead- rights that Santo was went on to state that the sen- Santo, in participated ing guilty. who tencing (ap- 87 to months range was interpreter, responded an hearing via proximately years), to nine based on seven he understood. history category a criminal of III. The plea agreement, with the Consistent court then addressed Santo: told that he faced a Santo years’ imprison- Now, Sаnto, minimum sentence of five listening Pelgro, Mr. to Mr. forty and a maximum sentence says way ment he he now calculates years: sentencing guidelines, you’re looking prison a minimum months in and a may happen what
Now let’s talk about you that how maximum 108 months. Is you plead guilty. if When Con- here it? understand they gress passes pass a law a maximum And the maximum possible sentence. Mr. Santo: Yes. here for the crime of distribu- sentence thereafter, Shortly stated: twenty years prison in tion of heroin is conspiracy charges, ... because On the case, you un- gentlemen, In each must Santo, case, your Mr. I of the part am no derstand drugs you, are attributable to says more I bargain; impose that will potentially-— maximum sentenсe is I under the law. appropriate think is well, is, the max- the maximum sentence along any- agreeing go I’m imum, ... and I forty years prison impose thing. I will follow the law and years prison, give you have to appropriate what I think is an sentence. sen- there’s that, you understand Mr. Santo? Do tence. Yes. Mr. Santo: court made no [Emphasis supplied.] The plea was based on stated that his possibility higher of the of a statu- mention plea agree- other than tory mandatory minimum the event inducements court found that Santo ment. The district greater quantity drugs was attributed voluntarily intelligently, and knowingly, Noting that Santo’s other to Santo. right plead guilty. Before consecutively, exercised his charges could be sentenced plea, the court stated: up accepting it all of Santo’s the court stated that could add “Understand, now, you plead if years, or charges to a maximum of 185 starting over.” taking there is no back imprisonment. life 28, 1999, more, or around the United Mr. will be On June entitled provided get States Probation Office and his case in a copy pre-sentence counsel with order to stand for trial. (PSR) report pursuant to Fed.R.Crim.P. The grouped court then the various counts 32(b)(6)(A). found Probation Santo, against applied upward sponsible grams for 1000 to 6000 her- adjustments, downward and stated that oin, grams rather than the 100 to 400 con- sentencing range 168 months templated plea agreement and at govern- 210 months. The court asked the hearing. the Rule 11 Pursuant ment and properly Santo’s counsel it had §§ U.S.C. these increased calculated guide- the sentence under the drug amounts raised Santo’s Initially, objected lines. Santo’s counsel penalties years from five minimum and fact that the amount of for which forty years maximum to ten mini- responsible he was had been increased addition, mum and maximum. In they life change plea: since his raised Santo’s offense level to 33. See I problem have no with the calculations § Applying U.S.S.G. 1B1.3. a criminal his- based on the amount that’s estimated III, tory category probation recom- probation to be attributable Mr. San- months, mended a sentence of 168 to 210 *5 problem plea to. The I have that is years
with a sentencе of ten and accounting only was based on imprisonment.2 a maximum of life grams activity. to Mr. Santo’s And any objections did not then file to the PSR his and all the discussions and ne- move withdraw his gotiations were based on that level of a grams hundred which would have start- sentencing hearing C. The himed at level 26 and then done the 27, 1999, July On the district court held adjustments. I why, again, And that’s sentencing hearing. a ad- math, question question don’t I but discrepancies dressed the between quantity that’s attributed to him. and plea agreement PSR and Rule 11 acknowledged district court that a discussion: drug quantity lesser had negotiated, been put Let me on the record the additional “[ujnder but stated that a sentencing I matter. don’t think going this is guidelines regime probatiоn has done what impact sentencing process go as we supposed given it’s to do and has me infor- forward, but the record should be com- appears unchallenged, mation that that the plete probation and the officers have drug quantity substantially greater, is and appropriately advised me. I’m, disposed I’m to follow it.” Upon investigation post plea response, Santo’s counsel stated: probation department, it appears that just, involved warrants Let me one issue I didn’t—with statutory imprisonment a term of respect changing a to this of the minimum years maximum, minimum of ten and a maximum I did address that earlier plea, of life. At the time of the Mr. my your with client and anticipating ruling Santo was advised that the maximum I him probably Honor’s told that’s face, sentence he could if he pleaded going what’s I’m happen so not wor- guilty, years was 40 in prison. There- ried aspect about that of it.... ISo fore, state, it, everyone I stone, so is clear on know that it is not written in that things justice such eventuate not something it’s the defendant can quires years, on, a sentence more than 40 count as a practical but matter that’s first, years 2. At the PSR set forth a minimum sen- a minimum sentence of ten and a maxi- forty tence of five and a maximum of imprisonment. mum of life 27, 1999, years. July changed On that was a rec- complete the district court make counting on was basically what he was proceedings. fully understаnding ord of the to that range closer things a lot of variables that there’s Noriega-Millan, known. that won’t be (1st Cir.1997); see also United (1st McDonald, it was responded The district Cir.1997). say is not to that a defen- sentencing guidelines and by the bound failure to withdrawal of his in the PSR dant’s seek drug quantities found had the district court immaterial. accurate. It noted said, reiterate, to the have that a defen- rights respect his preserved sought who relief below findings. dant has rulings and court’s appeal, and must high “faces hurdle” felt stated that there was “a" defect show end of the recommend the low “bound to proceeding in the Rule 11 itself.” United is 168 sentencing range, which Miranda-Santiago, States v. withdraw did not seek to months.” Santo (1st Cir.1996); see also Fed.R.Crim.P. to be rather asked guilty plea, but 11(h) “[a]ny (providing that variance from range. end of the at the low sentenced procedures required by this rule which Santo to 168 The district court sentenced rights not affect substantial shall be does (fourteen years) incarceration. months disregarded”). II. A. The district court’s error appeal, seeks to withdraw On 11(c)(1) provides Fed.R.Crim.P. that the district court’s plea. He contends guilty: accepting plea that before mandato- understatement of court must address the defendant (as years, rather ry minimum sentence *6 court and inform the personally open ultimately applicable years) ten than the of, and determine that the defendant ll(c)(l)’s explicit require- violated Rule understands, following: the defendant court advise the defendant ment that the (1) charge the to which the the nature of mandatory penalty pro- minimum of “the offered, mandatory the mini- plea is law, by any.” if further ar- vided n penalty law, provided by any, mum if court’s error affected his gues the pro- possible penalty the maximum rights.3 See Fed.R.Crim.P. law, any including vided the effect 11(h). supervised release special parole or term, required the fact that the court conten addressing Before these n any applicable to consider tions, not request we note that Santo did may depart from those guidelines but guilty plea in the district circumstances guidelines under some omission, however, is not nec court. This essarily fatal where a fundamental mistake is asserted. procedure Rule Here, to the most supplied.) as (Emphasis gov- charge, drug conspiracy, the
Ordinarily, an not raised serious we deem issue unequivocally court to be waived. ernment stated before the district mandatory faced a will, however, that Santo compliance determine years and a for- minimum sentence of five if a claim of non with Rule even court reit- year maximum. The district compliance presented ty in the dis was fig- maximum minimum and court, sufficiently erated those trict if the record is hearing, again the case ures at Rule developed, generally which is possibility or mention of requirement qualification ll(g)’s because of Rule alternative, on the first unsupported. Since we reverse Santiago resentenc- In the seeks point. ing separate ground that the amount of this ground, on the we do not reach was drugs upon which sentence was based tricky position being mínimums and máximums in a when it comes to any higher defendant, larger drug quantities accurately be found to able to advise a should requires, mandatory Rule 11 mini be involved. penalties mum and maximum faced. See problem the court faced was that Padilla, United States v. applicable mandatory provid- minimum (7th Cir.1994). certainty, lack of depended ined the statute on the amount however, does not relieve the court оf its for which was found heroin 11(c)(1)responsibility correctly in sponsible. While the court was correct as defendant, possible, insofar as is form applicable to the minimum those minimum and maximum amounts, it Santo under the then-assumed penalties applicable particular case. wrong was as to the id.; See see also v. Hern ultimately applicable given subsequent (5th Cir.1993). don, 58-59 increase in quantity. government, doubt assumed that The dissent contends that Rule ll’s re- anyone, would know what amounts should quirement adequately merely met statutory be equation. factored into informing five-year Santo of the mandato- hearing, At the Rule 11 the district court ry the lesser unqualified its based statement Santo of quantities govern- recommended statutory minimum and maximum on plea agreement, though ment even drug quantity provided by govern- greater quantities later found (100 grams). ment to 400 As this court resulting mandatory ten-year in a mini- noted, rely has district courts often on the accordingly. mum and sentenced him government’s representations regarding However, advice as to a mini- sentence, facts material to the but there mum that is no longer hardly relevant can can be risk in so doing, as this case demon- purpose, achieve Rule ll’s which is to ad- strates: vise defendant of the actual conse- might expect
One
that whatever
quences
of his
so that he can realis-
Guidelines,
complexity of the Sentencing
tically
pleаd guilty.
.
decide
whether
See
easy accurately
it would be
to advise the McDonald,
Here,
United F.3d 40 stances, would be to advise as to the differ- (1st Cir.1994). mandatory ent mínimums máximums and apply, that could depending quanti- on the
Where, here, mandatory as mini ty later attributed the defen- mums and depend drug máximums dant: quantity quantity attribution is finally
not until prudent hearing plea determined after the a judge [A] district procеss completed, obviously is a charged court is from defendant under an in- Cir.1995) (1st da, a 55 F.3d 695-696 alleging information
dietment (court 841(a) mini- containing to mention [or but failed § violation mum). allegation^ should] ambiguous] quantity through walk a defendant
simply
prescribed
statutory minimum sentences
Impairment
rights
B.
substantial
841(b)
“that a
explaining
§in
that the dis
Our determination
that the
may
applicable
be
inform
failing
trict court erred
on the
will be based
correct,
mandatory minimum
higher
involved
drugs found to have been
mat
in his case does not end
defendant
offense
which
11(h)
ters,
pro
however. Fed.R.Crim.P.
costly in time or
It is not
charged.”
procedures
“Any variance from the
plea col- vides:
during the
effort to enumerate
not affect
by this rule which does
mandatory penalties
required
the several
loquy
rights
disregarded.”
attributable
shall be
applicable when
substantial
potentially
uncertain.
quantities
only
are
A
should be set aside
for
guilty plea
implicate the “core concerns”
errors that
Padilla,
(quoting
at 1224
23 F.3d
include the defendant’s
of Rule
which
(5th
Watch,
422, 429
Cir.
7 F.3d
States v.
consequences of the
knowledge of the
1993)).
Noriega-Millan,
See
Here,
mini-
court announced
166;
at 60.
review
Gray,
We
exclu-
penalties based
mum and maximum
surround
totality
of the circumstances
at the
drug quantity asserted
sively on the
to ascertain
Rule
ing Santo’s
Thus the court
government.
time
rights
were affect
whether his
stated,
years in
give you
“I
have
ed
the error. See
minimum sen-
рrison, there’s
Cir.1995).
(1st
4-5
Cotal-Crespo,
inform
that the
tence.” It
did
minimum and maxi-
statutory mandatory
failure to tell
the court’s
San-
Regarding
change
to ten
mum sentences would
maximally
might be
sentenced
to that he
responsible
were found
and life Santo
just forty
rather than
imprisonment,
to life
Hence, as
quantity.of
heroin.4
greater
court,
initia-
on its own
years; the district
out,
district court erred
turned
events
tive,
at the
to correct that error
sought
mini-
informing
by stating that Santo
sentencing hearing
was,
fact, only
long
half as
mum that
if a sentence of
could withdraw his
deter-
drug quantity
later
that under
forty years
found to be
more than
1223;
Padilla, 23 F.3d at
mined. See
actual sentence
required. Because Santo’s
Herndon,
tained to
pro-
remanded
Reversed and
for further
inadyertently
may
court
have
district
The
opin-
with this
ceedings not inconsistent
expectations of
encouraged Santo’s
further
ion.
“proba-
by stating
a shorter
person who
bly
prosecutor’s
[the
SCHWARZER,
Judge,
District
Senior
sentence,” sug-
the most severe
looking for
dissenting.
reasonably antici-
might
that Santo
gesting
appeal pres-
respectfully
I
dissent.
the one
greater
no
than
pate a sentence
(1) Did the district
ents two issues:
case,
any
there was
being discussed.
(2)
11;
it
Rule
if
comply
fail to
with
or the
suggestion
frоm
did,
impair
substan-
did the error
Santo’s
quantity,
increase
that an
rights.
tial
range,
affecting
guideline
besides
statutory
(1)
insurmountable
“the court
pose an
Rule 11 states that
must
would
dis-
range
of ...
to sentences within
...
inform the defendant
man-
bar
law,
hearing.
datory
penalty provided
at the Rule
cussed
minimum
possible penalty
any,
maximum
pur
occurred
What
controverts
law....”
Fed.R.Crim.P.
provided by
requirement
Rule ll’s
pose behind
11(c)(1).
judge
district
informed San-
of,
court inform defendant
that the
plea hearing
to at the
understands,
that he
and determine
years.
five
He
minimum sentence was
did
mandatory minimum sentence.
provided
of the information
so
the basis
the defen
purpose is “to ensure that
That
agreement. The
change
his
is not induсed
dant
carried
that the relevant Count One
stated
expectation
totally
of a
unrealistic
because
years.
five
It
mandatory minimum of
might re
a sentence
as to how mild
he
“parties agree
further stated
11-12;
McDonald, 121 F.3d
see
at
ceive.”
in connection
position
take the
judge hearing plea from a defendant error, tutes reversible nor can such a re- charged an under indictment or informa- 11(c)(1). quirement be read into Rule 841(a) § tion alleging violation but con- Indeed, require district in- judges to taining no quantity allegation may simply form defendants of all the different man- walk a through defendant datory mínimums will undermine the pur- 841(b) minimum prescribed § sentences in 11(c) pose of Rule to ensure defendants explaining that a mandatory may will make decisions. It will also be and that the sentence will be informed prejudice work to the of future defendants based on quantity [attributed (even case). if it helps Santo in this That to the Id. at (emphasis defendant].” added). position, because a defendant case, course, In the instant plea who entered reliance on the government had the court at the informed agreement, would have a moving basis quantity attributed to at defendant. And the court’s statement point PSR increased the Watch is dictum because the conviction over what the ground was vacated on the had represented did not any mandatory agreement inform defendant of be- —not sentence. See id. at 428 n. 5. cause court is bound thе sentence (which Herndon, Similarly, contemplated by in United States v. (5th Cir.1993), 11(e)(1)(C)) F.3d 55 and United States is not under Rule but because *11 plea that at the hear- majority notes factual the has established the hand, If, the response the other ing, government, the for the basis colloquy is told that plea the at question, defendant estimated a court’s plea his notwithstanding the terms of. outstrip that did not the guideline range minimum sentence greater agreement, Maj. op. minimum. at ten-year pro- the than what may apply require does not 100-01 n. 5. McDonald complaint for, ground for he has no vided si- on those facts. McDonald is reversal states a if the later PSR sentencing guideline any lent on whether plea bar- excеeding specified that at the Rule range was mentioned gain. rather, guideline it turned on the colloquy; (2) dis- Assuming nonetheless judge at sentenc- range calculated erred, whether question is trict court parole the aid of the officer’s PSR ing with Santo’s substantial impaired the error recommendation, and that exceeded range “it is suffi- majority holds rights. minimum. McDonald misjudged the that Santo ciently likely inform the defendant holds that failure to of the light consequences of his mandatory minimum at applicable that he must be misinformation so court’s impair does not the Rule Maj. op. at plea.” allowed to withdraw rights where that minimum above, San- the information 100. As noted sentencing guide- was below time of the recеived at the range. line correct; only by reason of subse- it was may have been unfair- up, To sum development unforeseen quent by a when he was ambushed changed. ly treated controlling his sentence factors McDonald, event, sentencing hearing. any In at the revised PSR (1st Cir.1997), indistinguish- to with- may well have been entitled He case. The court the instant able from That he plea had he asked. draw his there held: however, so, not make does failed to do hand, error did the case error. court did reversible what the district rights. appellant’s substantial impair the reasons, I would affirm For these of 135 a sentence imposed The court judgment. than the longer months months—fifteen calculated
mandatory minimum-and any reference to without therefore, is,
mandatory minimum. It guide- that because
readily apparent nadir) (at out- sentencing range its line Sidell, Faye L. F. Chester SIDELL minimum, the stripped Petitioners, Appellants, to, and no actual no relevance latter had sentence. appellant’s upon, effect INTERNAL failure OF the district court’s COMMISSIONER Consequently, REVENUE, Respondent, the mandato- apprise appellant that did Appellee. minimum was an error ry discernible harm. No. 00-1078. here, per- 11. Id. at So Appeals, Court of calculation guideline formed the First Circuit. minimum, ar- reference to the which, given level of 33 riving at an offense 2, 2000. Aug. Heard III, re- history category criminal Sept. Decided range of 168-210 in a sulted McDonald, the bottom As in months. man- ten-year range “outstripped”
datory minimum.