## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2434

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Francisco Granados, * [PUBLISHED] * Appellant. *

___________ Submitted: November 16, 1998 Filed: February 11, 1999

___________ Before BEAM, LAY, and LOKEN, Circuit Judges.

___________ PER CURIAM. On July 30, 1990, Francisco Granados pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine in viol ation of 21 U.S.C. § 846. On appeal, Granados challenged the district court’s enhancement of his sentenc e for his possession of a firearm durin g the commission of the conspiracy. He also challenged the amount of cocaine for which he was held accountable. We affirmed Granados’ se ntence of 175 months. See United States v. Granados , 962 F.2d 767 (8th Cir. 1992).

In May of 1996, Granados filed a 28 U.S.C. § 2255 petition with the distric t court seeking to vacate, set aside, or correct his sentence on the grounds that hi sThe district court observed: 1
I find that Brown failed in his duty to his client. A defendant has a right to know, to the fullest extent possible, what the consequences of a plea will be. The evidence presented at the hearing overwhelmingl y sho ws that Brown was not aware of what impact the Sentencin g Guidelines would have on the petitioner’s sentence, did not inform th e petitioner that suc h guidelines might be applied, and failed to consult the guideli nes to ascertain any such effect. Although Brown could not have known exactlywhat the petitioner’s sentence would be, he was required to investigate all possible consequence s of a guilty plea and, at minimum, not to mak

e uninformed promises about the petitioner’s sentence. I find Granad os’ attorney was ineffective in the advice he gave Granado s regarding his possible sentence.
Order on Pet. to Vacate Sentence at 9-10. -2- counsel was ineffective and his guilty plea was involuntary. At that time, Granado s claimed that his counsel promised him that the maximum sentence he would receiv e was five years. Granados argued that had he known of the likely sentence he would receive, he would not have agreed to pl ead guilty. After an evidentiary hearing lasting two days, the district court found that Granados’ attorney was ineffective because he failed to consu lt or explain to Granados how the United States Sentencing Guidelines would af fect his sentence. However, the district court denied Granados post

1 conviction r elief on the ground that the deficiency of his counsel did not result i n prejudice. The court found that Granados was not prejudiced by his attorney’ s ineffectiveness because the court informed Granados of the statutory minimum an d maximum

s entence at the time of his plea and because Granados had signed a ple a agreement stating that

he understood that his maximum sentence could be forty years. The refore, the court held that Granados’ plea would stand. This court granted a certificate of appealability on the sole issue of ineffective assistance of counsel. We reverse and remand to the district court for a new sentencing hearing.There can be little question that the plea agreement served as an inducement for 2 Granados’ guilty plea

as evidenced by the following questions and answers contained in the Petition to Enter Plea of Guilty: Q. 36(a): Has a ny plea agreement been made by you with anyon e

which causes you to plead GUILTY?
A: Yes. Q. 36(b): If so, exactly what is that agreement, as you understand it?
A: Gov ernment will amend indictment to charge Defendan t with one count of conspiracyto distribute more than 3.5 kg,

-3- On appeal from the denial of post-conviction relief, Granados contends tha t ineffective assistance of his counsel prejudiced him because he would not have pleaded guilty if hi s attorney had informed him of the sentence he would receive under th e Sentencing Guidelines. This argument is meritless because the law in this circuit i s clear that a defendant who pleads guilty has no right to be apprised of the sentencing op tions outside the statutory maximum and minimum sentences. Thomas v. Unite d State s , 27 F.3d 321, 326 (8th Cir. 1994). Furthermore, a defendant’s reliance on a n attor ney’s mistaken impression about the length of sentence is insufficient to rende r a plea involuntary as long as the court informed the defendant of his maximu m possible sen tence. See Roberson v. United States , 901 F.2d 1475, 1478 (8th Cir

. 19 90). It is clear from the record that Granados was informed of his possibl e maximum

s entence. Notwithstanding our rejection of this argument, we find on a n ov erall review of the record that Granados was prejudiced relating to the sentenc e Granados received.

DISCUSSION

Granados was indicted for conspiracy to distribute cocaine along with severa l of his co-conspirators. Pursuant to a plea agreement with the government, which was 2but less than 5kg of cocaine.

At the Rule 11 hearing held on July 31, 1990, when the defendant entered his 3 guilty plea, the court was aware of the plea agreement and affirmatively announce d that it chose “not

to decide now whether to accept the plea agreement.” Tr. of Guilty Plea at 41:22-23. A t the sentencing hearing held on November 2, 1990, however, the court stated “I did not decide whether to accept the plea a greement earlier, so I do now accept the plea agreement . . . .” Tr. of Sentencing Hearing at 32:1-3. After accepting the plea agreement, Fed. R. Crim. P. 11(e)(3) requires the court to “inform th e defendant that it will embody in the judgment and sentence the disposition provide d for in the plea agreement.” The record indicates that did not occur. Th e Assistant United States Attorney made the following statements to th e 4 district court at sentencing:
Th e entire conspiracy that has been charged and the guideline range . . . adequately and accurately reflects Mr. Granados’ involvement.

. . . I believe the information that’s included within the pre-sentenc e report is accurate and it adequate ly reflects his involvement, and that Mr. Granados should be sentenced within the guideline r ange that is provided. -4- accepte d by the court, Granados entered a plea of guilty to an amended indictment

. 3 The o riginal indictment charged Granados with conspiracy to possess more than 5 kilograms of

cocaine and less than 15 kilograms of cocaine, the amount of cocain e inv olvedin the overall conspiracy. The government, however, in exchange for th e defendant’s plea of guilty, promised to amend the indictment to charge Granados with one count of conspiracy to distribute more than 3.5 kilo grams but less than 5 kilograms
o f cocaine. In addition, as part of the plea bargain the government agreed that “[t]he defendant in this case is pleading guilty to a charge which adequately reflects th e seriousness of the actual offense behavior and the relevant conduct of the defendan t as defined b y the U.S. Sentencing Commission ( See e.g. , U.S. Sentencing Guidelines § 1B1.3 ).” Notwithstanding this agreement, neither counsel for Granados nor th e gover nment

objected to the Pre-Sentence Report (PSR), which attributed 5 to 1 5 kilograms of cocaine to Granados. Although Granados made written objection to the 4Tr. of Sentencing Hearing at 35: 9-25.

This case is different than the routine case where a defendant may be hel d 5 responsi ble for the overall amount of cocaine involved in the conspiracy if his co

conspirator’s sales were in f urtherance of the conspiracy and were either known by or foreseeable to him. SeeU.S.S.G. § 1B1.3, comment. (n.1) (Nov. 1990). In this case, the government expres sly agreed that Granados was involved in an amount more than 3.5, but less than 5 kilograms of cocaine, and that this amount as charged in th e amended indictment reflected the seriousness of Granados’ ac tual offense behavior and relevant conduct. Thu s, the government agreed that the scope of the relevant conduct attributable to Granados would not exceed five kilograms of cocaine. -5- amo unt attributed to him in the PSR, his counsel stood mute on this subject at th e sent encing hearing and never mentioned that the government had entered into a ple a bargain i n which it agreed that the scope of the relevant conduct attributable t o Gr anados was limited to 3.5-5 kilograms of cocaine. On this basis, we believ e 5 Granados’ attorney’s failure to read and understand the Sentencing Guideline s prejudiced Granados. By not informing the court that the amount of cocaine involved should not have exceeded 5 kilograms und er the plea agreement and that consequently peti tioner’s offense level should have been 30 rather than 32, counsel’s professiona l deficien cies allowed the government to violate the plea agreement. Thus, Granado s wa s sentenced under a higher base offense level. See United States Sentencin g Co mmission, Guidelines Manual , § 2D1.1(c)(4)-(5) (Nov. 1990). While Level 3 2 would hav e resulted in a sentencing range of 151-188 months, Level 30 would hav e reduced the sentencing range down to a range of 121-151 months. See id. Ch. 5, Pt. A. Thus, Granados was sentenced to serve an additional forty to fifty months because his atto rney was not familiar with the Guidelines and failed to challenge th e govern ment’s breach of its plea agreement. In the present case the prosecutor als o fa iledto apprise the sentencing court of the government’s agreement as to relevan t conduct. In Santobello v. New York , 404 U.S. 257, 262 (1971), the Supreme Cour t recognized that “when a plea rests in any signif icant degree on a promise or agreementFederal Rule of Criminal Procedure 52(b) states that “[p]lain errors or defects 6 affe cting substantial rights may be noticed although they were not brought to th e attenti on of the court.” The Supreme Court has observed that “[i]n exceptiona l circumstances, especially in criminal cases, appellate courts, in th e public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvio us, or if they otherwise seriously affect the fairness, integrity, or publi c reputation of judicial proceedings.” Silber , 370 U.S. at 718, 82 S. Ct. at 1288 (quoting United States v. Atkinson , 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1936)). -6- of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” See also United States v. Barresse , 115 F.3d 610, 612 (8th Cir. 1997) (“When the government fails to fulfill a material term of a ple a agreement, the defendant

may seek specific performance or may seek to withdraw his plea.”); United States v. Van Thournout , 100 F.3d 590, 594 (8 th Cir. 1996) (“Allowing the government to breach a promise that induced a guilty plea violates due process.”). Although Granados failed to raise these arguments in the district court or before this cour t, we have authority to review this issue for plain error. See United States v. Bro wn , 508 F.2d 427, 430 (8th Cir. 1974). The Supreme Court and this court hav e recognized in criminal cases that appellate courts can examine a critical issue affecting substantial rights sua sponte under Fed. R. Crim. P. 52(b). See Silber v . United States , 6 370 U.S. 717, 717-18, 82 S. Ct. 1287 , 1288 (1962); United States v. Brown , 508 F.2d 427, 430 (8th Cir. 1974). There can be little doubt that the petitioner’s substantia l rights are affected if his prison sentence is longer than it should have been.

On this basis we find the case should be remanded to the district court for a new sentencing he aring to consider the government’s agreement that 3.5 to 5 kilograms of cocaine would be the appropriate relevant conduct attributable to Granados.

Reversed and remanded.-7-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.