UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 91-1832

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL A. HEKIMAIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(October 9, 1992)

Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I.

The indictment in this case charged that On December 7, 1990,

Michael A. Hekimain was found to possess stolen mail and articles

contained therein: namely, a credit card issued in the name of

Homer C. Schmidt, in violation of 18 U.S.C. §1708. The credit card

was part of the contents of a let ter addressed to Homer C. and

Diana L. Schmidt, 6905 Colfax Drive, Dallas, Texas, which had been

stolen from the mail by Timothy Alan Farris, a United States Postal

Service employee. Hekimain received this card from an associate of2

his and Farris' who also received credit cards which were stolen

from the mail by Farris. Hekimain knew that Farris would steal

mail, remove c redit cards and then sell them. Knowing that the

credit card had been stolen from the mail, Hekimain used this

credit card several times, including on December 7, 1990, at the

Dallas Gentlemen's club in Dallas, Texas, to purchase products and

services. The Presentence Report (PSR) determined that the total

loss attributable to Hekimain was $4,446.76. In exchange for the

government's commitment to forego further prosecution for

activities which occurred or arose out of his participation in

other crimes charged in the indic tment, Hekimain agreed to plead

guilty to the § 1708 violation.

The district court accepted Hekimain's plea of guilty. The

PSR determined that the Guidelines range for imprisonment was 9 to

15 months, followed by a supervised release range of 2 to 3 years.

Explaining that "[t]h e defendant has one of the longest criminal

history records the court has ever seen" and "an extensive history

of credit card abuse", the district court opted to make an upward

departure from the Guidelines range for imprisonment and sentenced

him to five years in prison followed by a supervised release term

of three years. The term of imprisonment imposed was four times

the maximum Guidelines range and was the maximum period authorized

for a violation of 18 U.S.C. § 1708.

Hekimain was also ordered to pay the special assessment of

$50.00 and restitution in the amount of $3,696.76. The fine was

waived because of Hekimain's inability to pay.3

Hekimain filed notice of appeal on the following grounds:

A. The final judgment adjudging him guilty of an offense

under 18 U.S.C. § 1708 was invalid because:

1. The district court failed to personally explain the

maximum penalty to Hekimain, relying on the prosecutor to perform

the task.

2. The district court failed to explain the effect of the

three-year supervised release term during the course of the plea

colloquy.

3. The district court failed to apprise Hekimain during the

plea colloquy of its power to effect an upward departure from the

applicable Guidelines sentencing range.

B. The sentence imposed by the district court was unwarranted

because:

1. The district court failed to provide acceptable reasons

for effecting an upwa rd departure from the Guidelines sentencing

range applicable to Hekimain.

2. The district court failed to inform Hekimain of the ground

upon which it based its decision to make an upward departure.

3. The district court failed to provide reasons supporting

the magnitude of the upward departure.

4. The district court's upward departure was not reasonable

in length.

Because we reverse the conviction based upon the court's

noncompli ance with the requirements of Federal Rule of Criminal4

Procedure 11(c)(1), we do not reach the issues on sentencing set

forth in part B above.

II.

Hekimain argues that his guilty plea is invalid and his

convictio n must be reversed because the district court failed to

comply with the requirements of Fed. R. Crim. P. 11(c)(1). Rule 11

reads, in pertinent part, as follows:

(c) Advice to Defendant. Before accepting a plea of

g uilty or nolo contendere, the court must address the

defendant perso nally in open court and inform the

defendant of, and determine that the Defendant

understands, the following:

(1) the nature of the charge to which the plea is

offered, the mandatory minimum penalty provided by law,

if any, and the maximum possible penalty provided by law,

including the effect of any special parole or supervised

release term, the fact that the court is required to

consider any applicable sentencing guidelines but may

depart from those guidelines un der some circumstances

. . . (emphasis added).

This circuit has identified three "core concerns" under Rule

11: (1) whether the guilty plea was coerced; (2) whether the

defendant understands the nature of the cha rges; and (3) whether

the defendant understands the consequences of the plea. S ee United

States v. Shacklett

, 921 F.2d 580, 582 (5th Cir. 1991); United

Sta tes v. Bernal , 861 F.2d 434, 436 (5th Cir. 1988). When a

district court completely fails to address one of these concerns,

the defendant's substantial rights have been affected and Rule 11

requires automatic reversal, Bernal

, 861 F.2d at 436; United States

v. Corbett

, 742 F.2d 173, 178 (5th Cir. 1984). If the core

concerns are met, however, an "inadequate address" or less than

"letter-perfect" compliance with Rule 11 may be excused under a5

harmless error standard. B ernal

, 861 F.2d at 436; see also United

States v. Dayton , 604 F.2d 931, 939-40 (5th Cir. 1979) (en banc),

cert. denied, 445 U.S. 904, 100 S. Ct. 1080, 63 L.Ed. 2d 320

(1980).

A

. DISTRICT COURTS FAILURE TO INFORM HEKIMAIN PERSONALLY OF

THE MAXIMUM PENALTY FOR THE OFFENSE.

Hekimain first contends that the court failed to advi se him

personally of the statutory maximum penalty for a violation of 18

U.S.C. § 1708. At the plea hearing, the Assistant United States

Attorney (AUSA) read the indictment and undertook to state the

penalties. The AUSA stated that a violation of 18 U.S.C. § 1708

was punishable by a term of imprisonment not to exceed five years,

to be followed by a term of supervi sed release of no more than

three years; and that, if the term of supervised release is

violated, the defendant can be imprisoned "for the remainder of the

term." Hekimain's attorney indicated in response to the court's

questioning that he had discussed the maximum penalties i nvolved

with his client and that the government had correctly described the

penalties. The court asked Hekimain if he understood the maximum

penalties involved and Hekimain responded affirmatively. Hekimain

did not have any questions about the penalties.

Rule 11 (c) (1) states that the court must address the

defendant personally in open court and inform the defendant of and

deter m ine that the defendant understands the maximum possible

penalty, including the effect of any supervised release term. In

United States v. Clark , 574 F.2d 1357 (5th Cir. 1978), and United6

States v. Crook

, 526 F.2d 708 (5t h Cir. 1976), both cited by

Hekimain, the Court reversed where the prosecutor, not the judge,

described the maximum possible penalties. However, in later cases,

this Court has not applied Rule 11's requirement that the court

personally address the defendant so rigidly. E.g

., United States

v. Dayton , 604 F.2d 931 at 938 (judge need not be "sole orator or

lector," but must only involve himself personally in the inquiry);

United States v. Sanchez

, 650 F.2d 745, 748 (5th Cir. 1981)

(prosecutor's reading of indictment and the opportunity later given

by the district court for the defendant to ask questions

sufficient); Bernal , 861 F.2d 434 at 437.

Hekimain argues that t he latter cases involved the district

court's failure to inform the defendant of the nature of the

charges, not its failure to inform of the maximum penalties. The

distinction, however, is not persuasive.

We see no reason why the reasoning of the above cited cases

should not apply to Rule 11's requirement that a defendant be

informed of the maximum penalties for an offense as well. Dayton

6 04 F.2d at 938. In the instant case, while it was the AUSA who

announced in court the maximum sentence which Hekimain faced upon

his conviction for a violation of 18 U.S.C. § 1708, as well as the

maximum term of supervised release, the maximum amount of fine, the

amount of the mandatory assessment, and that Hekimain could be

ordered to pay full restitution, the court then asked counsel for

Hekimain whether he had d iscussed the maximum penalties with his

client. After receiving an affirmative answer, the court asked7

Hekimain whet her he understood the maximum penalties involved.

Hekimain replied that he did. Moreover, the court specifically

asked Hekimain if he had any questions about the charges or the

penalties. We hold therefore that the prosecutor's statements,

along wit h the court's follow up questions, adequately satisfied

the requirements of Rule 11(c) that the trial court advise Hekimain

of the maximum penalty. Dayton , 604 F.2d at 938.

B. D ISTRICT COURT'S FAILURE TO PROVIDE AN EXPLANATION OF THE

EFFECT OF SUPERVISORY RELEASE.

Hekimain next argues that Rule 11 was violated by the district

court's failure to provide an explanation of the effect of a term

of supervisory release, i.e., the prosecutor incorrectly stated the

effect s of supervised release in the event that Hekimain should

violate a condition of supervised release. The prosecutor stated

to Hekimain during the plea colloquy that his imprisonment would be

followed by a term of supervised release and that if the term of

supervised release was violated, Hekimain could be imprisoned for

the remainder of the term

. We agree that the underlined portion of

this statement was not correct. Hekimain could potentially be

imprisoned again for a two year term, without credit for any time

already served under supervised release. 18 U.S.C. § 3583(e).

There do not appear to be any reported cases in this Circuit

involving an inco rrect explanation of the effect of violation of

supervised release and such error's effect on the validity of a

guilty plea. This Court has addressed the total lack of

explanation of the possibility and effects of supervised release in1 Even under that "worst case" hypothesis, the total period of elapsed

time between his first day in prison and his last would be eighteen

years and one month--twenty-three months short of the twenty years'

maximum for Part A of Count 1 alone , and six years and eleven

months short of the twenty-five years' consecutive statutory

maximum--twenty years for Part A of Count 1 plus five years for

Count 87. That is so because, despite the theoretically possible

extension of his supervised release term from three to five years

pursuant to 18 U.S.C. § 3583(d)(2), in actuality Dr. Bachynsky could

only be returned to prison for three years following revocation of

supervised release rather than five years, because at the time of

his sentencing, RICO was a Class B felony under 18 U.S.C. § 3559,

and three years is the maximum period of incarceration for which a

Class B felon may be returned to prison if his supervised release

should ever be revoked. See 18 U.S.C.§ 3583(e)(3). For Count 87, a

Class C felony, there is a limit of two years' additional

incarceration following revocation of supervised release. But

prison terms following revocation of supervised release are served

concurrently, so three years is the maximum revocation term to which

Dr. Bachynsky is exposed.

Bachynsky at 1353.

8 United States v. Bachynsky

, 934 F.2d 1349 (5th Cir.) ( en banc ),

cert. denied

, U.S. 112 S. Ct. 402, 116 L. Ed. 2d 351

(1991). The district court in that case advised the defendant of

the statutory maximum penalty but did not advise him that the

sentence would include a period of supervised release or explain

its effects. I d

. at 1353. However, Bachynsky was sentenced to

121 months imprisonment and three years supervised release; and the

maximum penalty fixed by statute was 25 years imprisonment. Even

in a "worst case" scenari o, the total period of time which would

elapse from Bachynsky's first day in prison to his last would have

been 18 years and one month. 1

This Court went on to hold in Bachynsky that because the court

had informed the defendant of the statutory maximum and because the

aggregate maximum period of incarceration, un der the actual

sentence of imprisonment and supervised release, cannot exceed the

statutory maximum, the failure of the court to mention supervised9

release, in the absence of other omissions in the plea colloquy,

was only a partial failure to address a core concern. Therefore,

the harmless error standard of review was applicable. I d

. at 1359-

60.

In United States v. Garcia-Garcia , 939 F.2d 230, 231-33 (5th

Cir. 1991), and in United States v. Bounds

, 9 43 F.2d 541, 545-46

(5th Cir. 1991), this Court appli ed Bachynsky ' s analysis and

reversed the convictions where the district court did not mention

the possibility or effect of a term of supervised release and the

possible period of incarceration of the actual sentence exceeded

the statutory maximum of which the defendant was advised

.

A recent case adds another facet to this issue. In United

States v. Arlen

, 947 F.2d 139, 146-47 (5th Cir. 1991), cert.

denied

, U.S. , 112 S. Ct. 1480, 117 L. Ed. 2d 623 (1992),

the district court explained that any sentence of imprisonment

would be followed by three years of supervised release, but did not

advise the defendant that he would face additional imprisonment if

he violated the terms of supervised release. The defendant claimed

that his guilty plea was invalid because the district court failed

to advise himfully of the effects of supervised release. This

Court, without citing Bachynsky or its analysis, n oted that the

district court had not totally failed to address the subject of

supervised releas e and thus d efendant had to demonstrate that he

was prejudiced, i.e., that the district court's failure to explain

the effect of supervised release caused him to plead guilty when he

would not have otherwise done so

.2 At the plea hearing Arlen was advised as to the statutory maximum

and that there was a period of supervised release but nothing as to the effect of

supervised release. Arlen was sentenced to twelve months of imprisonment and

three years of supervised release on both counts to run consecutively. The

maximum aggregate period of incarceration which Arlen faced under his sentence

was three years, i.e. twelve months under 18 U.S.C. § 371; 21 U.S.C. §§ 331(a)

and 333(b), and two years upon revocation of supervised release under 18 U.S.C. §

3583(e)(3). The aggregate period of time that Arlen could have spent in prison,

three years, was less than the five years statutory maximum

.

10 On its face, Arlen appears to eliminate the condition to the

rule adopted in Bachynsky , i.e. application of the harmless error

standard is based on ". . . assuming the aggregate maximum period

of incarceration under the actual sentence of imprisonment and

supervised release cannot exceed the statutory maximum explained to

the defendant." The A rlen court did not analyze whether the

aggregate time in prison which Arlen could serve, in the event

supervised release was revoked, would be less than th e statutory

maximum. However, A rlen is consistent with Bachynsky in fact,

because Arlen's maximum potential period of incarceration was less

than the statutory maximum 2 and, therefore, we read Arlen as being

consistent with the Bachnysky condition.

The Bachynsky condition is not met in Hekimain's case.

As in Arlen

, the court in Hekimain (through the AUSA)

mentioned at the plea hearing that Hekimain would be subject to a

three year term of supervised release. However, in Hekimain, the

AUSA went on to explain the effects of revocation of the supervised

release. The explanation, unfortunately, was incorrect.

We will not attempt to analyze what the inaccurate statement

by the AUSA may have meant to Hekimai n. Rather, we hold that in

this case the incorrect statement by the AUSA as to the effect of11

supervised release was the same as if he had failed to mention it

at all.

At the plea hearing, Hekimain was clearly advised as to the

five years of imprisonment under the statutory maximum, but because

of the incorrect statement of the AUSA he was not correctly advised

as to the time of imprisonment which might occur upon revocation of

supervised release. Hekimain was sentenced to five years of

imprisonment and three years' of supervised release. The maximum

aggregate period of incarceration which Hekimain faces under this

sentence is seven years, i.e. fiv e years under the statutory

maximum of 18 U.S.C. § 1708 and two years upon revocation of

supervised release under 18 U.S.C. § 3583(e)(3). Thus, Hekimain's

maximu m aggregate incarceration time exceeds both the statutory

maximum and the amount of incarceration time of which he was

correctly advised at the plea hearing. Likewise, under the

Bachynsky "worse case" assumption that Hekimain would (1) serve

every day of his five year p rison term, (2) have his supervised

release revoked and be return ed to prison on the last day of his

supervised release term, and (3) serve every day of his additional

two year prison time after revocation of supervised release, the

total per iod of elapsed time between the first day in prison and

his last would be 10 years. Bachynsky , 934 F.2d at 1353. As each

of these exceeds the five year maximum statutory sentence of which

he was correctly advised, Hekimain was prejudiced by the district

court's failure to properly describe the effect of supervised

release. Garcia-Garcia 939 F.2d at 232, Bounds , 943 F.2d 541.3 It is understood that the sentence to be imposed upon the defendant

is within the sole discretion of the sentencing Judge, subject to

the provisions of the Sentencing Reform Act and the sentencing

guidelines promulgated thereunder.

Paragraph 4 of Plea Agreement Vol 1

12 C. DISTRICT COURTS FAILURE TO INFORM HEKIMAIN THAT IT COULD

UPWARDLY DEPART.

Hekimain also contends that his guilty plea should be set

aside because the district court failed to inform him that it could

upwardly depart from the sentencing guidelines.

Rule 11(c)(1) requires the distri ct court to inform the

defendant that it is required to consider any applicable sentencing

guidelines but that it may depart from those guidelines under some

circumstances.

The transcript of the plea colloquy clearly reflect s that

Hekimain was informed that his sentence would be computed with

reference to a Guidelines "range", and that the district court

would select the applicable "rang e." There was, however, no

mention by the court or, for that matter, any other participant, of

the district court's power to effect an upward departure from the

applicable Guidelines' range. We note also that paragraph 4 of the

plea agreement, which is the only paragraph of the plea agreement

dealing with sentencing, 3 does not mention the power of th e court

to depart from the guidelines; and by its language clearly infers

that the parties were thinking of a sentence within the range fixed

by the guidelines.

Hekimain claims that he had no idea that the district court

could, under certain circum s tances, ignore the Guidelines and13

sentence himto a term of imprisonment that was four times the

magnitude of the maximum Guidelines sentence. Absent prior notice,

Hekimain claim s he had no reason to expect that his guilty plea

could result in a sentence of the severity imposed by the district

court.

The government counters that the plea colloquy satisfied Rule

11 and that t he district court need not use any "magic words"

concerning upward departure. A fair reading of the colloquy, it

argues, is that, although defense counsel had advised Hekimain of

h is projection of the minimum and maximum guidelines ranges, the

judge made it clear that he would make the final determination of

the applicable sentencing guidelines range and what s entence

Hekimain would receive. The government argues alternatively that

any error is harmless because Hekimain was advised of the maximum

statutory sentence, which he received. The court did not

specifically tell Hekimain that the court could "depart" from the

guidelines range, it argues, but the court did specifically inform

Hekimain that a guideline range would be calculated by the

probation department. Furthermore, it claims, the court informed

Hekimain that the calculation could be higher than he thought it

would be, that the court would make the final determination of what

the guideline range would be, and the court would determine what

sentence he would receive. The government argues that this

language satisfies Rule 11(c)(1).

No Fifth Circuit case has previously addressed whether the

colloquy regarding guidelines in this case complies with Rule 11,4 The Court: Have you discussed with your client guideline sentencing?

Mr. Mills: We have, sir.

The Court: And you've made a calculation.

Mr. Mills: We have basically a low range and a high range, Your Honor.

The Court: Okay. Could you just give me those so I can use those as an

example.

Mr. Mills: The low range we calculated would be zero to six months, Your

Honor.

The Court: And the high range?

Mr. Mills: The high range would be fifteen to twenty-one months.

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14 and if not, w hat effect this has on the validity of Hekimain's

guilty plea. In Bachynsky , this Court noted that supervised

release was the only error alleged by the defendant and left open

the question of the effect other omissions in the plea colloquy

would have on its analysis. See Bachynsky , 934 F.2d at 1360.

Rule 11 clea rly requires that the district court inform the

defendant that the court is "obligated to consider any applicable

sentencing Guidelines but may d epart from the Guidelines under

specified circumstances " (emphasis added) as one component of the

"maximum penalty elem ent" of a "core interest" protected by the

colloquy mandated by Rule 11. In Bachynsky , 934 F.2d 1349 at 1356

this court recognized that the defendant must underst and the

consequences of his guilty plea as the "c ore interest" protected

by, inter alia, the mandatory explanation of the district court's

power to effect an upward departure.

From our review of the transcript of the plea hearing, it is

clear that the district court did not advise Hekimain that the

district court could, under certain circumstances, sentence him to

a term of imprisonment that exceeded the maximum Guidelines range. 4The Court: Okay. Mr. Mills -- I'm sorry. Mr. Mills, has your client

understood what you've told him about the guideline ranges that you've just given

me?

Mr. Mills: Yes, sir, I believe he has.

The Court: And does he understand that you have no way of knowing whether

that will be the guideline range calculated by the Probation Department and

accepted by me?

Mr. Mills: Yes, sir.

The Court: Now, do you generally understand what your lawyers have told

about guideline sentencing?

The Defendant Hekimain: Yes, sir, I do.

The Court: You heard Mr. Mills tell me that one calculation that he's made

on your behalf would show zero to six months and a higher one would show fifteen

to twenty-one months?

The Defendant Hekimain: Yes, sir.

The Court: Do you understand again there's no way for him to know or me to

know right now that either one of the calculations is correct?

The Defendant Hekimain: Yes, sir.

The Court: You do understand that our Probation Department will do a

calculation for me?

The Defendant Hekimain: Yes, sir.

The Court: Do you understand that if that calculation turns out to be

higher than you may think, or Mr. Mills may think, you would not have a right to

withdraw your plea of guilty?

The Defendant Hekimain: Correct, sir.

The Court: You do understand that if your attorneys thought the

calculation was wrong they could make objections to me and say it's wrong?

The Defendant Hekimain: Yes, Your Honor.

The Court: Okay. You understand I am the one who would rule on any

objections as to whether the calculation of the guideline was correct or not?

The Defendant Hekimain: Yes, sir.

The Court: So you understand that I am the one who would make the final

determination of what your guideline ranges will be and what sentence you will

receive?

The Defendant Hekimain: Yes, sir.

TR. Vol 2 - p. 9, line 11 to p. 11, line 13

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15 We hold that such failure is another partial failure to

address the core concern of making sure that a defendant

understands the consequences of his plea. By itself, this failurea:jm1:91-1832:opn:

4/27/4/4:18pm

16 might not necessitate vacation of the sentence; but when it occurs,

as in this case, with another partial failure in th e same core

c oncern, and the B achynsky condition for application of harmless

error analysis is not met, we have no hesitancy in holding that

such error is not harmless and affects the Defendant's substantial

rights.

Hekimain's plea was thus not voluntary, and the strictures of

the due process clause as to this point were not satisfied. U nited

States v. Pearson

, 910 F.2d 221 (5th Cir. 1990) cert denied

U.S. , 111 S. Ct. 977, 112 L. Ed. 2d 1062 (1991).

IV. CONCLUSION

For the foregoing reasons we hold (1) that the district court

did not err in connection with Rule 11(c)(1)'s requirement that it

inform the defendant personally of the maxi mum penalty; but (2)

that the partial failures to comply with the requirem ents of

Federal Rule of Criminal Procedure 11 (c)(1) were not harmless in

this case; and accordingly, we REVERSE the conviction, VACATE the

sentence, and REMAND their case to the district court to permit

defendant to plead anew.a:jm1:91-1832:opn:

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17