United States v. Kerby Keller

OPINION OF THE COURT

Kerby Keller appeals from the denial of his presentence motion to withdraw his guilty plea and from the final judgment of conviction entered against him. Keller contends that contrary to Rule 11, Fed.R. Crim.P., he was not told at the time his plea was accepted the maximum sentence he could receive. Because we believe that Keller was adequately informed of the nature of the sentence in the precise language set forth by Congress, we affirm.

On November 17, 1977 Keller pleaded guilty in federal district court to conspiracy to manufacture, distribute, and possess with the intent to manufacture, distribute, and possess a non-narcotic drug, methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1976).1 Before sentencing, Keller filed a motion to withdraw his guilty plea. On April 18, 1978 his motion was denied. Keller was sentenced under 21 U.S.C. § 841(b)(1)(B). It provides that for violations of the statute involving a non-narcotic drug, the maximum sentence shall be imprisonment of not more than five years, a fine of not more than $15,000, or both. Further, “[a]ny sentence imposing a term of imprisonment under this paragraph shall, in the absence of such prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment” (emphasis supplied).2 The district court sentenced Keller to four years imprisonment plus two years special parole.

On appeal from the judgment of conviction, Keller contends that his rights under Rule 11(c)(1)3 were violated at the time his guilty plea was accepted.4 First, Keller asserts that he was told only that the statute provides for a special parole term of “at least two years,” when the maximum sentence which he could have received might have included lifetime special parole. Second, Keller asserts that he was not told “personally” by the district court judge of his maximum sentence. Both objections arise out of the following exchange between the district court judge and the U.S. Attorney:

The United States Attorney: Excuse me, sir. Methamphetamine is a non-narcotic schedule II, so it would be five years and/or $15,000 fine.

The Court: Five years and/or $15,000 fine?

The United States Attorney: Yes, sir. And not less than two years special parole.

The Court: Alright. I stand' corrected. So, the maximum sentence is five years and/or $15,000 fine, plus two years special parole, to commence at the expiration of any jail sentence. App. at 16.

Keller cites United States v. Walden, 578 F.2d 966 (3d Cir. 1978), as establishing that 21 U.S.C. § 841(b) authorizes lifetime special parole. In light of Walden, he claims that the district court judge’s failure to inform him of the potential for lifetime special parole violated his right to be told the maximum sentence. However, Walden, a case of first impression in this circuit, was not decided until after the guilty plea colloquy challenged here.

When Keller was informed that the statute authorized a special parole term of “not less than two years,” the district court was operating under the authority of United States v. Crusco, 536 F.2d 21 (3d Cir. 1976).5 Writing for a unanimous panel, Judge Rosenn held that it was error not to tell the defendant that, under the harsher sentencing terms of section 841(b)(1)(A), he faced a “special parole term of not less than three years.” Id. at 25. On similar facts, this circuit in Horsley v. United States, 583 F.2d 670 (3d Cir. 1978), held that informing the defendant that he would be subject to a special parole term of at least three years on his release from custody, “adequately explained the special parole term.”6 Id. at 675-76. Cf. Roberts Cf.v. United States, 491 F.2d 1236 (3d Cir. 1974) (must inform defendant of possibility of special parole term).

Moreover, Walden was not a Rule 11 case. In affirming the defendant’s conviction, this court rejected his contention that lifetime special parole was not authorized by statute. We also held that in the “circumstances of [that] case,” the sentence did not constitute cruel and unusual punishment. 578 F.2d at 972. The issue of whether a defendant must be informed at the Rule 11 proceedings of the possibility of lifetime special parole was not before us.

We hold that the district court adequately informed the defendant of the maximum sentence by using the precise language of the statute. Without rendering an advisory opinion, the judge could do no more. To require the judge to have informed Keller that the maximum sentence under section 841 might include a lifetime special parole term would be to ask him to guess, in a hypothetical case not before him, whether this circuit would uphold a sentence of that duration in this case.7 Cf. United States v. Hawthorne, 532 F.2d 318, 321 (3d Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976) (district court in Rule 11 proceeding “properly refused to render an advisory opinion prior to trial as to the dimensions of the sentence which might be imposed on convictions under all counts of the indictment”).

Keller contends alternatively that he was not advised “personally” by the district court judge that his sentence might include at least two years special parole.8 Keller claims that the judge’s misstatement of the maximum sentence despite a proper recitation by the U.S. Attorney entitles him to withdraw his guilty plea:

The United States Attorney: Yes, sir. And not less than two years special parole.

The Court: Alright. I stand corrected. So, the maximum sentence is five years and/or $15,000 fine, plus two years special parole, to commence at the expiration of any jail sentence. (App. at 16).

This circuit insists on strict compliance with the requirements of Rule 11, Horsley v. United States, 583 F.2d 670 (3d Cir. 1978), and in an appeal from a judgment of conviction no showing of prejudice is required where the defendant demonstrates that Rule 11 was violated at his guilty plea colloquy. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 *943L.Ed.2d 418 (1969). However, no case which Keller has cited to us has found, on facts similar to those alleged here, a violation of Rule 11. Generally, a guilty plea may be withdrawn where the judge has delegated to the U.S. Attorney the duty to inform the defendant, prior to the Rule 11 colloquy, of the defendant’s rights. Woodward v. United States, 426 F.2d 959 (3d Cir. 1970). Accord, United States v. Hart, 566 F.2d 977 (5th Cir. 1978). Here, the U.S. Attorney stated in open court the maximum parole term in the precise language of section 841. While the district court, in repeating one part of the entire sentence, did not exactly quote the U.S. Attorney, to reverse Keller’s judgment of conviction and allow him to withdraw his guilty plea would, on these facts, impose an undue rigidity on the Rule 11 hearing and completely distort its purpose. See United States v. O’Donnell, 539 F.2d 1233, 1235 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976) (“rule 11 does not require that the district court observe any particular ritual”). We hold that the district court judge adequately discharged his obligation to advise the defendant personally of the maximum sentence, and hence, we find no violation of Rule 11.

The judgment of the district court will be affirmed.