Criminal – Guilty plea – Rule 11 – Maximum sentence

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Where a defendant who pleaded guilty received a sentence of 360 months, the defendant should be permitted to change his plea, as (1) the defendant was not informed of the maximum penalty for the crime to which he was pleading guilty and (2) a provision in the plea agreement waiving the defendant’s right to appeal is unenforceable.

Finding of plain error

“Defendant-appellant Samuel Ortiz-García (Ortiz) executed a plea agreement and entered a guilty plea without ever having been informed that the maximum penalty for the crime to which he was pleading guilty was life imprisonment. Ortiz ultimately received a sentence of 360 months, though his plea agreement recommended 120 months. Ortiz argues that the waiver of appeal provision in his plea agreement is unenforceable, that the district court violated Rule 11 by failing to inform him of the maximum penalty at his change-of-plea hearing, and that the court violated Rule 32 by failing to inquire at the sentencing hearing whether Ortiz had reviewed the pre-sentence investigation report with his attorney. Because we find that the waiver is unenforceable and that the Rule 11 violation constituted plain error, we vacate and remand for a new change-of-plea hearing. …

“Four things happened at the sentencing hearing that are important here. First, the district court failed to confirm whether Ortiz had in fact reviewed the [presentence investigation report (PSR)] with his attorney. Second, the court informed Ortiz that the maximum sentence under 18 U.S.C. section924(c)(1)(A)(iii) was life imprisonment. Third, the court imposed a sentence of 360 months, finding that the sentence to which the parties had agreed, 120 months, did not ‘reflect the seriousness and aggravated nature of the offense.’ Fourth, after informing Ortiz that he had waived his ‘right to appeal substantive issues regarding the conviction and sentence,’ the district court went on to say, ‘I must tell you, Mr. Ortiz, that because the Court has not sentenced you according to the terms and conditions of the Plea Agreement, you do have the right to appeal.’ Ortiz did not object to the court’s failure to inquire about the PSR, nor did he ask that his plea be vacated once the court informed him of the maximum penalty. …

“… While the district court did question Ortiz specifically about his understanding of the waiver provision, the court failed to comply with Rule 11(b)(1)(H)’s mandate that the court inform the defendant of, and ascertain that the defendant understands, ‘any maximum possible penalty.’ The court did neither. Perhaps this error could have been mitigated if the plea agreement had included the maximum penalty, or there was other evidence that the defendant had been informed of and understood the maximum penalty. But there is no such evidence. Furthermore, any opportunity the court might have had at the sentencing hearing to cure the omission and provide Ortiz with time to consider withdrawing his plea was marred by other mistakes, which we describe later.

“Under the circumstances, we are not convinced that Ortiz’s plea was knowing, and we therefore choose not to enforce the waiver. We can thus reach the merits of Ortiz’s claim. …

“The government urges us to find that the error did not affect Ortiz’s substantial rights, because Ortiz was notified of the maximum penalty both in the PSR and during the sentencing hearing and did not object or move to withdraw his plea. The government suggests that Ortiz’s inaction belies his claim that, but for the Rule 11 error, there is a reasonable probability that he would not have elected to plead guilty. If the record clearly established that Ortiz had reviewed the PSR with his attorney prior to the sentencing hearing, that might indeed negate Ortiz’s claim that the Rule 11 error affected his substantial rights, given Ortiz’s failure to object to the PSR. The record before us, however, reveals no such thing, because the district court failed to confirm at Ortiz’s sentencing hearing that Ortiz had read and discussed the PSR with his attorney. We are thus met with another complicating factor, which forces us to take one more detour.

“Federal Rule of Criminal Procedure 32(i)(1)(A) requires a district court, at sentencing, to ‘verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.’ The government concedes that the district court failed to make the proper inquiry under Rule 32(i)(1)(A) but nonetheless argues that there is sufficient evidence that Ortiz read and discussed the PSR with his attorney to satisfy the Rule. The government relies on Ortiz’s motion to continue the original sentencing hearing, in which Ortiz’s counsel stated that he ‘came to discuss’ the PSR and amended PSR with his client on September 13, 2010 and ‘need[ed] to thoroughly study the reports and further discuss with [his] client the content of these.’ These statements alone do not establish that Ortiz actually read or discussed the reports with his attorney. Though we have held in the past that ‘it is enough that the court determine that the defendant and counsel have had an opportunity to read and discuss the report,’ United States v. Cruz, 981 F.2d 613, 620 (1st Cir. 1992), we were interpreting a prior iteration of the Rule, which only required the court to ‘determine that the defendant and defendant’s counsel have had the opportunity to read and discuss the presentence investigation report,’ id. at 619 n.9 (emphasis added). The Rule, which was amended in 1994, now requires the district court to confirm that ‘the defendant and the defendant’s attorney have read and discussed‘ the report. Fed. R. Crim. Pro. 32(i)(1)(A) (emphasis added). Without going any further, we find that Rule 32(i)(1)(A)’s mandate was not satisfied here.

“Given the record before us, we must therefore assume that Ortiz was notified for the first time at his sentencing hearing that he might receive a life sentence. The fact that Ortiz said nothing when the district court informed him of the maximum penalty at the sentencing hearing does not convince us that Ortiz would have elected to plead guilty regardless of the Rule 11 error. …

“As we did in [United States v. Rivera-Maldonado, 560 F.3d 16 (1st Cir. 2009)], we find here that the error ‘went to the very purpose of Rule 11, “which is to advise a defendant of the actual consequences of his plea so that he can realistically decide whether to plead guilty.”‘ 560 F.3d at 20 (quoting United States v. Santo, 225 F.3d 92, 98 (1st Cir. 2000)). …

“Of course, in Rivera-Maldonado, the defendant actually received the maximum sentence, a lifetime of supervised release, whereas Ortiz was sentenced below the maximum. Nonetheless, the thirty-year sentence Ortiz received was well above the ten-year minimum that had been mentioned in his plea agreement and during his plea colloquy. The omitted information here, like the erroneous information in Rivera-Maldonado, ‘dramatically altered the sentencing stakes for the defendant,’ … and Ortiz has established a reasonable probability that he would not have entered into the plea agreement if he had been properly informed of those stakes. Under these particular circumstances, the Rule 11 error affected Ortiz’s substantial rights.

“Finally, as in Rivera-Maldonado, the Rule 11 error ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings’ such that we must vacate Ortiz’s plea and remand for a new change-of-plea hearing. … One of the core concerns of Rule 11 is that the defendant have ‘knowledge of the consequences of his plea.’ … The failure to insist on the requirements of Rule 11 may well deter future defendants from entering into guilty pleas and waivers of appeal, which conserve judicial resources and promote ‘efficiency and finality in the adjudication of criminal cases.’ …

“Because we find that the Rule 11 violation constituted plain error, we need not address whether the Rule 32 violation, which Ortiz also raises for the first time on appeal, meets the same fate. …

“While plain error is a ‘high hurdle,’ … some defendants do clear it, and Ortiz has. On remand, Ortiz may of course receive a sentence far longer than 360 months. Indeed, that risk is very real, given the underlying conduct at issue here. But Ortiz made the decision to proceed with this appeal with full knowledge of its potential consequences.”

United States v. Ortiz-García (Lawyers Weekly No. 01-321-11) (19 pages) (Stahl, J.) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 10-2323) (Dec. 7, 2011).

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