UNITED STATES of America, Plaintiff-Appellee, v. Wilbye TELEMAQUE, a.k.a. Wilby, a.k.a. Jacque, Defendant-Appellant.
No. 99-13321
United States Court of Appeals, Eleventh Circuit.
March 19, 2001.
244 F.3d 1247
Non-Argument Calendar.
Before BIRCH, BARKETT and COX, Circuit Judges.
PER CURIAM:
Wilbye Telemaque appeals his convictions, entered on a plea of guilty, of possession of crack cocaine with intent to distribute and conspiracy to do the same.1 He argues first that the district court meddled in plea negotiations in violation of
We reject the argument that the district court improрerly intermeddled in the plea negotiations. Telemaque‘s counsel informed the court at the outset of the plea hearing that Telemaque had entered a plea agreement, but needed special explanation that the plea agreement (which committed the Government only not to oppose а two-level acceptance-of-responsibility reduction in Telemaque‘s offense level) did not determine Telemaque‘s sentence. The reason, counsel explained, was that Telemaque was unhapрy with his counsel because there was no mention of a three-point reduction for early acceрtance of responsibility. The court first asked why Telemaque was “not happy.” (Supp. R.1 at 4.) After the question was bеtter
The court‘s statement did not violate Rule 11(e), for two reasons. First, the written plea agreement was already executed. No case that Telemaque cites, or that we have located, holds that a court‘s post-agreement remark can violate the Rule. See United States v. Johnson, 89 F.3d 778, 782 (11th Cir.1996) (noting that Rule 11‘s “literal” terms do not apply outside of plea discussions). Second, even if the Rule‘s penumbrae, as interpreted in Johnson, do prohibit potentially coеrcive post-agreement statements, this one was not; the court‘s statement here did not differ in substance from оne the court could properly make in ascertaining that the plea is not based on the misconception that a Government promise not to contest a particular sentencing outcome guarantеes that outcome. Cf. United States v. Camacho, 233 F.3d 1308, 1320-21 (11th Cir.2000). We therefore reject Telemaque‘s first argument.
But we do think that the district court plainly erred in failing to inform Telemaque of the nature of thе offense. Any failure to address one of Rule 11(c)‘s three “core concerns,” of which informing the defendant of the nature of the offense is one, is prejudicial plain error. United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000). Whether the court has adequately informеd the defendant of the offense‘s nature turns on a variety of factors, including the complexity of the offensе and the defendant‘s intelligence and education. See, e.g., United States v. Wiggins, 131 F.3d 1440, 1443 (11th Cir.1997); United States v. DePace, 120 F.3d 233, 236 (11th Cir.1997); Quiñones, 97 F.3d at 475.
The record here does not persuadе us that Telemaque was adequately informed, or that the district court had an adequate basis on which to find that the plea was knowing. The district court referred to the nature of the offense only once in the entire colloquy, asking Telemaque:
Have you seen the indictment or have you had the indictment read to you so that you undеrstand exactly how you are charged in counts one and three, and what the Government what [sic] would have to prove in order that you be convicted?
(Supp. R.1 at 10-11.) Telemaque replied, “Yes.” (Id.) The court did not refer to the elements of the offense in inviting the Government‘s proffer, cf. Wiggins, 131 F.3d at 1443, nor was there any statement on the record that Telemaque‘s counsel assisted Tеlemaque in understanding the charges, cf. United States v. Byrd, 804 F.2d 1204, 1206 (11th Cir.1986). This case is materially similar rather to Quiñones, in which we held insufficient a colloquy in which the court asked the defendant only whether he had read the indictment (charging use of a firearm during a drug offense) and reviewed it with his attorney. Quiñones, 97 F.3d at 474.
Possession with intent to distribute crack and conspiracy to do the same are not of course the most complicated of offenses, perhaps not even as complicated as the offense in Quiñones of using or carrying a firearm during a drug-trafficking offense. But the circumstances do not suggest that Telemaque would understand even this simple offense without at least some explanation, or that the district court could assure itself with a simple yes-no question that Telemaque actually understood. The court did not inquire into Telemaque‘s education or background at thе change-of-plea hearing, but the presentence report shows that Telemaque immigrated to the U.S. from Haiti at the age of sixteen and finished high school, but at the bottom of his class. The record does not refleсt that Telemaque had any prior involvement in the court system, either, that
In these circumstances, we conclude that the district court plainly erred in failing to describe to Telemaque at all the nature of the chargеs against him. We vacate Telemaque‘s conviction and remand for further proceedings.
VACATED AND REMANDED.