TIMOTHY S. JOVANOVIC, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-877

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that, before accepting his guilty plea, the
district court did not advise him of the maximum penalty that could be
imposed.

   1. After entering a plea of guilty in the United States District
Court for the Eastern District of Missouri, petitioner was convicted
on two counts of distributing LSD, in violation of 21 U.S.C.
841(a)(1), and one count of conspiring to commit that offense, in
violation of 21 U.S.C. 846.  He was sentenced to nine years'
imprisonment, a three-year special parole term, and five years'
probation.  The court of appeals affirmed (Pet. App. A1-A11).

   The pertinent facts are stated in the opinion of the court of
appeals (Pet. App. A3-A6).  At his arraignment on June 1, 1986,
petitioner pleaded not guilty to the three counts against him.  He was
released on bond.  On Friday, August 15, 1986;  the district court
revoked petitioner's bond and ordered him confined pending trial
because he violated the conditions of his release by using controlled
substances.  During the following weekend petitioner decided to change
his plea to guilty.  Id. at A3.

   On Monday, August 18, 1986, petitioner appeared in court to enter
his plea.  At the plea proceeding, the following colloquy took place
(Pet. App. A3-A6):

         THE COURT:  With regard to Count 1 (conspiracy) * * * (do)
      you understand on Count I, I can fine * * * you up to $250,000
      and order * * * you to spend up to 20 years in jail, or (both) *
      * * ?

         JOVANOVIC:  Yes.

                      * * * *

         THE COURT:  With regards to Counts VIII and X (distribution
      counts) do you understand that I can fine up to $250,000 on each
      of those counts and I can likewise incarcerate you for up to 20
      years on each of those counts, plus a 3 year minimum special
      parole term * * * ?

         JOVANOVIC:  Yes, sir.

                      * * * *

         THE COURT:  So that the jail term on Jovanovic, the maximum
      -- I am sure you have added it a few times -- is what, 60 years?

         DEFENSE ATTORNEY:  Yes, sir.

         THE COURT:  Three years special parole term minimum and
      $750,000 in fines, is that right * * * ?

         U.S. ATTORNEY:  I get 50, Your Honor.

         THE COURT:  50 what?

         U.S. ATTORNEY:  50 years.  15 and 15 plus 30 and plus 20.

                      * * * *

         THE COURT:  VII and IX, at least down here they got 20 years.

         DEFENSE ATTORNEY:  It should be 15.

         U.S. ATTORNEY:  That's an error.  It should be 15.

         THE COURT:  That's an error and it's an important error.  So
      we have a total possible for Mr. Jovanovic of 50 years, is that
      right, Mr. Jovanovic?

         JOVANOVIC:  Yes, sir.

         THE COURT:  The fine we talked about is $750,000 and 3 year
      minimum special parole term * * * ?

         DEFENSE ATTORNEY:  That's correct.

         THE COURT:  Mr. (U.S. Attorney)?

         U.S. ATTORNEY:  That's correct.

         THE COURT:  And Mr. Jovanovic?

         JOVANOVIC:  Yes.

         U.S. ATTORNEY:  Your Honor, let me correct that.  With regard
      to the 5000 count, Count X, which is 5000 dosage unit, I believe
      that calls for 20 years.

         There is an enhanced penalty based upon the number of grams.

                      * * * *

         THE COURT:  So X is different from VIII?

         U.S. ATTORNEY:  I believe it is * * * .

                      * * * *

         U.S. ATTORNEY:  Judge * * * Roman Numeral IV is the enhanced
      penalty provision with regard to LSD, based on the number of
      grams.

         Should a defendant be convicted of 5 grams or more,
      possession or distribution, the enhanced penalty is 20 years
      instead of 15.  We have that situation here with regard to Count
      X.

                      * * * *

         THE COURT:  So you are saying instead of a total for Mr.
      Jovanovic would be 55 years, not 50 years?

         U.S. ATTORNEY:  That's right.

         (At that point the district court directed petitioner's
      attorney to discuss with petitioner what had transpired to
      determine if it would affect his decision to plead guilty.)

         DEFENSE ATTORNEY:  Judge, I conferred with Mr. Jovanovic and
      it makes no difference to the plea.

         THE COURT:  You know what we are talking about here, Mr.
      Jovanovic?

         JOVANOVIC:  Yes.

         THE COURT:  It's a total * * * (of) 55 years jail time that
      can conceivably be assessed by me against you under the statutes
      that apply to your plea here today, you know that you want to go
      ahead, do you?

         JOVANOVIC:  Yes, sir.

   At the conclusion of the plea proceeding, the district court
accepted petitioner's guilty plea.

   Petitioner was sentenced on September 23, 1986.  Petitioner
subsequently moved to withdraw his guilty plea on the ground that the
district court did not correctly advise him of the maximum sentence to
which he was subject.  The district court denied the motion.

   2. On appeal, petitioner renewed his effort to withdraw his guilty
plea.  While characterizing the exchange regarding the maximum
allowable sentence as "confusing," the court of appeals concluded that
in the end the district court correctly advised petitioner that he was
subject to a maximum prison term of 55 years (Pet. App. A6).  The
court of appeals further found that the district court did not inform
petitioner that he could receive a lifetime special parole term (id.
at A6-A7).  The court concluded (id. at A8), however, that the error
was harmless because the parole term imposed did not exceed the parole
term that petitioner was told he could receive.

   3. Petitioner renews his contention that the district court did not
properly advise him of the consequences of his plea, as required by
Fed. R. Crim. P. 11(c)(1).  Specifically, he argues that the district
court did not clearly advise him of the maximum prison sentence to
which he was subject, and that the court completely failed to inform
him that he was subject to a lifetime special parole term.

   It is true that the court at first erroneously advised petitioner
as to the maximum prison sentence to which he was subject.
Ultimately, however, the court correctly told petitioner that he was
subject to a maximum prison term of 55 years (Pet. App. A5).
Petitioner then consulted with counsel, after which the court asked
petitioner directly if he wanted to go ahead with the plea in light of
the "55 years jail time that can conceivably be assessed by me against
you," and petitioner responded, "Yes, sir" (id. at A6).  Accordingly,
despite the initial confusion, petitioner was in the end clearly and
accurately informed of the maximum prison term that could be imposed.
/1/

   It is also true that, although the court correctly told petitioner
that he was subject to a mandatory minimum three-year special parole
term (Pet. App. A4), the court neglected to inform petitioner that the
special parole term could be as long as life. Nevertheless, as the
court of appeals concluded (id. at A8), the error was harmless in
light of the fact that the court actually imposed only the minimum
three-year special parole term.  Rule 11(h), Fed. R. Crim. P.,
provides that "(a)ny variance from the procedures required by (Rule
11) which does not affect substantial rights shall be disregarded."
The Advisory Committee's notes make clear that any error by the court
in understating the maximum penalty is harmless where "the penalty
actually imposed did not exceed that indicated in the warnings * * *
." Fed. R. Crim. P. 11(h) advisory committee notes, 1983 Amendment, 18
U.S.C. App. (Supp. IV) at 987-989.

   Petitioner argues that the court of appeals' finding of
harmlessness is inconsistent with this Court's decision in McCarthy v.
United States, 394 U.S. 459 (1969).  In McCarthy the Court held that
"prejudice inheres in a failure to comply with Rule 11" and that "a
defendant whose plea has been accepted in violation of Rule 11 should
be afforded the opportunity to plead anew." 394 U.S. at 471-472.  But
the McCarthy per se rule was adopted long before the enactment of Rule
11(h), at a time when Rule 11 required only a brief procedure during
which the chance of a minor and insignificant deviation from the rule
was relatively slight.  Indeed, the Advisory Committee notes to Rule
11(h) make clear that the rule was adopted because some courts
persisted in reading McCarthy "as meaning that the general harmless
error provision in (Fed. R. Crim. P.) 52(a) cannot be utilized with
respect to Rule 11 proceedings." Fed. R. Crim. P. 11(h) advisory
committee note, supra, at 989.  /2/

   Petitioner further contends that the decision below conflicts with
the Ninth Circuit's decision in United States v. Sharon, 812 F.2d 1233
(1987).  In Sharon, however, the district court neglected to inform
the defendant that he was subject to any special parole term, and it
then proceeded to impose a ten-year special parole term.  Accordingly,
Sharon is very different from this case, where the court informed the
defendant that he was subject to a mandatory special parole term of at
least three years and then imposed a term of precisely that length.
See United States v. Vela, 606 F.2d 1224, 1225-1226 (D.C. Cir. 1979).

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JANUARY 1988

   /1/ Rule 11(c)(1) provides in pertinent part that, before accepting
a guilty plea, the court must inform the defendant of and determine
that he understands "the mandatory minimum penalty provided by law, if
any, and the maximum possible penalty provided by law, including the
effect of any special parole term * * * ."

   /2/ Even before the enactment of Rule 11(h) this Court held that
relief under 28 U.S.C. 2255 "'is not available when all that is shown
is a failure to comply with the formal requirements of (Rule 11).'"
United States v. Timmreck, 441 U.S. 780, 785 (1979) (quoting Hill v.
United States, 368 U.S. 424, 429 (1962)).  Citing Timmreck, petitioner
argues that Rule 11(h) is inapplicable here because this case involves
a direct appeal and not a collateral attack.  But Rule 11(h) does not
make any distinction between direct appeals from and collateral
attacks on convictions resulting from guilty pleas.