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. e du/thir dc ir c uit_2001/239Filed October 16, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-2440

UNITED STATES OF AMERICA,

v.

ALLEN POWELL, a/k/a KEITH BATES

ALLEN POWELL, Appellant

Appeal from United States District Court for the Eastern District of Pennsylvania

Docket No. 99-cr-00719 District Judge: Honorable Eduardo C. Robreno

Argued March 9, 2001

Before: BECKER, McKEE and STAPLETON, Circuit Judges

(Opinion Filed: October 16, 2001)

Maureen Kearney Rowley, Esq.

Chief Federal Defender David L. McColgin, Esq. (Argued) Elaine DeMasse, Esq.

Assistant Federal Defender Supervising Appellate Attorney

Federal Court Division Defender Association of Philadelphia

Suite 540 West -- The Curtis Center Independence Square West Philadelphia, PA 19106 Attorney for AppellantMichael R. Stiles

United States Attorney Walter S. Batty, Jr. Assistant United States Attorney Chief of Appeals Kathleen M. Rice (Argued) Assistant United States Attorney

Suite 1250 615 Chestnut Street Philadelphia, Pennsylvania 19106 Attorney for Appellee

Mitchell E. Zamoff, Esq.
Hogan & Hartson 555 13th Street, N.W. Washington, D.C. 20004-1109 Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge:

Allen Powell appeals his sentence of 192 months of imprisonment followed by five years supervised rele ase. He argues that the district court erred by not ruling on his pro se motion for a downward departure based upon condi tions of confinement, and by imposing a period of supervi sed release that was longer than explained in his plea agreement and the change of plea colloquy.

For the reasons that follow, we will vacate the sen tence
and remand to the district court for clarification of its rationale for denying his motion for a downward dep arture.
Our remand will also allow the district court to co nsider a concession regarding the supervised release that th e government has made during the course of this appea l.

I. Background

On November 9, 1999, a grand jury charged Powell wi th one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. S 922(g)(1). On December 15, 1999, the government filed a notice of prior convictions statement

2pursuant to 18 U.S.C. S 1924(e).1 Thereafter, Powe ll entered

into a written plea agreement. In that agreement, t he government stipulated that his "offense level is 33

, pursuant to U.S.S.G. Section 4B1.4, because he is a n armed career criminal," and that Powell was eligibl e for a three-point downward departure for acceptance of responsibility pursuant to U.S.S.G. SS 3E1.1(a) & ( b). App. at 129a-30a. The government also agreed to "[m]ake whatever sentencing recommendation as to imprisonme nt, fines, forfeiture, restitution and other matters wh ich the government deems appropriate." Id. at 127a. The ple a agreement also stated:

[Powell] has the three prior convictions set forth in the

Notice of Defendant's Prior Convictions for Enhanced Sentencing Under Title 18, United States Cod e, Section 924(e) filed by the government in this actio n. Therefore, the defendant understands, agrees and has ha d explained to him by counsel that the Court m ay impose the following maximum sentence; Life impriso nment-- with a 15-year mandatory minimum term of imprisonment -- a $250,000 fine, a three-yea r term of supervised release and a $100 special assess ment. . .

The defendant may not withdraw his plea beca use the Court declines to follow any recommendation, motion or stipulation by the parties to this agreem ent. No one has promised or guaranteed to the defendant what sentence the Court will impose.

Id. at 127-28 (emphasis added). The agreement furth er

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1. Section 924 is entitled "Penalties," and states:

(e)(1) In the case of a person who violates section 922(g) of this

title and has three previous convictions by any co urt referred to in section 922(g)(1) of this title for a violen t felony or a serious drug offense, or both, committed on occasions dif ferent from one another, such person shall be fined not more than $25 ,000 and imprisoned not less than fifteen years. . . .

18 U.S.C. S 924(e). Section 924(e), which does not expressly delineate a maximum term of imprisonment, has been construed to allow a life sentence. United States v. Mack, 229 F.3d 226, 229 n.4 (3d Cir. 2000) (citing Custis v. United States, 511 U.S. 485 (1994 )).

3provided that the stipulations did not bind the cou rt and

that the court could make determinations that might increase or decrease the applicable range under the Sentencing Guidelines, and thereby affect Powell's

sentence.

At the ensuing change of plea hearing, the court as ked the government to state the maximum penalty. The prosecutor responded as follows:

The maximum penalties are life imprisonment, a $250,000.00 fine, a three-year term of super vised release and a $100.00 special assessment. Th ere is a fifteen-year mandatory minimum prison senten ce, which is applicable to this case.

THE COURT: Mr. Powell, do you understand the maximum penalty to be just as stated by the Assistant United States Attorney?

THE DEFENDANT: Yes.

THE COURT: Has your attorney discussed with you the sentencing guidelines?

THE DEFENDANT: Yes.

THE COURT: Do you understand, the Court will not be able to determine how the sentencing guideli nes will be applied in your case, until after the presen tence investigation report is completed and you an d the Government have had an opportunity to challe nge the facts reported by the Probation Officer?

DEFENDANT: Yes.

***

***

THE COURT: Do you understand that the Court could in appropriate circumstances, impose a sente nce which is more severe than the sentence, which the guidelines

recommend?

DEFENDANT: Yes.

THE COURT: Do you understand that if you are sent to prison, a term of supervised release may be imposed when you are released from prison?

4DEFENDANT: Yes.

Id. 40a - 42a (emphasis added). The court accepted the guilty plea and ordered a Pre-sentence Investigatio n.

Thereafter, while in custody awaiting sentencing, P owell sent a letter to the district court complaining of what he

characterized as substandard conditions at the Huds on County Jail in New Jersey where he was being detain ed pending sentencing. He attached a list of those con ditions, and argued that the conditions entitled him to a do wnward departure pursuant to United States v. Brinton , 13 9 F.3d 718 (9th Cir. 1998).

The Presentence Report that the court subsequently

received stated that the maximum sentence was "life imprisonment, with a mandatory minimum of 15 years, pursuant to 18 U.S.C. S 924(e)." PSI atP 50. The se ntencing range in the report was calculated between 180 to 2 10 months of imprisonment.2 The PSI also stated "[i]f a term of imprisonment is imposed, the Court may impose a ter m of supervised release of not more than five years , pu rsuant to 18 U.S.C. S 3583(b)(1)." PSI at P 53 (emphasis adde d).

Defense counsel objected to the recommendations in the PSI based upon the Supreme Court's decision in Appr endi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). He argued that Powell should not be subjected to sente ncing enhancements under 18 U.S.C. S 924(e) and U.S.S.G. S 4B1.4(b)(3)(B) because the indictment failed to a llege the predicate convictions for those enhancements. Even though Powell had previously been informed that the maximu m supervised release that could be imposed was three years, he neither questioned nor objected to the report's statement that the maximum term was five years.

The district court concluded that the applicable sentencing range under the guidelines was 180 to 21 0 months followed by a period of supervised release o f three

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2. The PSI stated "based on a total offense level o f 30 and a criminal history category of VI, the guideline range for imp risonment is 168 to 210 months. However, since the mandatory minimum te rm of imprisonment is 180 months, the effective guideline range is 180 to 210 months." PSI at P 51 (emphasis in original).

5to five years. Powell did not object. The court int erpreted

Powell's letter about the conditions at the Hudson County facility as a pro se motion for a downward departur e based on the substandard conditions of his presentence detention. App. at 48a.

The court rejected Powell's Apprendi claim, and sentenced Powell to 192 months of imprisonment (16 years) plus a five-year term of supervised release. The co urt imposed that sentence without ever formally ruling upon Powell's motion for a downward departure based upon the conditions of his presentence detention. This appea l

followed.

II. Jurisdiction, Issues & Standards of Review

The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We have appellate jurisdiction under 18 U.S .C. S 3742, and 28 U.S.C. S 1291. We must decide if the district court erred in failing to address Powell's request for a downward departure based on substandard conditions of

confinement. "We review the district court's decisi ons concerning departures from the Sentencing Guideline s for abuse of discretion." United States v. Abuhouran, 1 61 F.3d 206, 209 (3d Cir. 1998). However, when reviewing le gal questions regarding the application of the guidelin es, "we need not defer to the district court's conclusion, and we will review its holding for legal error." Id. Here, howe ver, we do not know why the district court rejected Powell's r equest for a downward departure. The court merely announced th at it would treat Powell's letter as a pro se motion for a departure, but sentenced Powell without departing f rom the applicable guideline range, and without explicitly ruling on Powell's pro se motion. For the purposes of this ap peal, we will assume that the court's sentence to the sugges ted guideline range constituted an implicit denial of P owell's motion for a downward departure. In United States v

. Mummert we explained our jurisdiction to review a d istrict court's denial of a motion for departure. We stated :

[I]f the ruling was based on the district co urt's belief that a departure was legally impermissible, we have jurisdiction to determine whether the distri ct court's

6understanding of the law was correct. By con trast, if

the district court's ruling was based on an exercise of discretion, we lack jurisdiction [under Unit ed States v. Denardi, 892 F.2d 269, 271-72 (1989)].

United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994).

We must also determine if Powell's guilty plea agre ement included an understanding as to the supervised rele ase he was exposed to and if so, whether he is entitled to specific performance of that portion of his plea agreement. 3 We

review that claim for harmless error. Fed.R.Crim.P. 11(h);4 United States v. Electrodyne Systems Corp., 147 F.3 d 250, 252 (3d Cir. 1998). Our review of whether the gover nment violated the terms of the plea agreement is plenary as it is a question of law, and there is no factual dispute. United States v. Moscahlaidis, 868 F.3d 1357, 1360 (3d Cir . 1989).

III. Discussion

A. Powell's Pro Se Downward Departure Motion

Inasmuch as the district sentenced Powell without r uling on his request for a downward departure, we have no way of knowing why the district court denied the reques ted departure. As noted above, under United States v. D enardi, 892 F.2d 269, 271-72 (3rd Cir. 1989), if the court chose to do so as an exercise of discretion, we have no juri sdiction to review its decision. The government concedes tha t under United States v. Mummert, this matter should be rem anded to afford the district court an opportunity to expl ain its refusal to grant Powell's pro se motion. In Mummert , as here, the defendant appealed the district court's f ailure to grant a requested downward departure following a gu ilty

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3. In the alternative, Powell argues that he should be allowed to withdraw his guilty plea.

4. Federal Rule of Criminal Procedure 11(h) provide s:

(h) Harmless Error. Any variance from the pr ocedures required by

this rule which does not effect substantial rights shall be disregarded.

Fed. R. Crim. P. 11(h).

7plea. The district court had not given any explanat ion for

denying Mummert's request. We remanded stating:

in cases such as this, where the record does not make

clear whether the district court's denial of departure was based on legal or discretionary grounds, we believe that the appropriate course of action is to vacate the

sentence and remand for the district court t o clarify the basis for its ruling.

34 F.3d at 205.

Accordingly, we will remand so that the district co urt can clarify its rejection of Powell's motion for a down ward departure.

B. Powell's Sentence

Powell's supervised release presents a more difficu lt question. Powell contends that he is entitled to sp ecific performance of the plea agreement or, in the altern ative, withdrawal of his guilty plea. As noted above, Powe ll's written plea agreement expressly stated that the co urt could not impose more than three years of supervise d release. Similarly, the Assistant United States Att orney informed Powell that he was not exposed to more tha n three years of supervised release at the Rule 11 ch ange of plea hearing, and that statement was never correcte d by the court. However, Powell's sentence included a fi ve year term of supervised release as allowed under 18 U.S. C. S 924. Powell therefore argues that he did not volu ntarily and intelligently change his plea, and that the gov ernment breached its "promise" that he would not be exposed to more than three years of supervised release. We wil l address each argument in turn.5

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5. Powell also argues that we should vacate his sen tence based on our decision in United States v. Gilchrist, 130 F.2d 11 41, 1133 (3d Cir. 1997), where we vacated the defendant's sentence be cause the district court caused a breach of the defendant's guilty ple a agreement. There, however, the parties entered into a guilty plea agr eement pursuant to Rule 11(e)(1)(C), which is binding on the court onc e accepted. Because

there is no indication in the record before us that the parties entered into the guilty plea agreement here pursuant to Rul e 11(e)(1)(C), we find that this assertion is without merit, and need not be addressed.

81. Whether Powell Entered the Plea Voluntarily

and Intelligently

Fed. R. Crim. P. 11 was formulated to ensure that a defendant's guilty plea represents a voluntary and intelligent decision to waive fundamental protectio ns. See North Carolina v. Alford, 400 U.S. 25, 30 (1970); M cCarthy v. United States, 394 U.S.459, 465 (1969). Accordin gly, under Fed. R. Crim.P. 11(c) "[b]efore accepting a p lea of guilty . . . the court must address the defendant p ersonally in open court and inform the defendant of, and dete rmine that the defendant understands . . . the maximum po ssible penalty provided by law, including the effect of an y. . . supervised release term." It is undisputed that Pow ell was misinformed about the length of supervised release that he

could receive.

Nevertheless, not all Rule 11 errors invalidate a g uilty plea. Fed. R. Crim. P. 11(h), entitled "Harmless Er ror," provides that "[a]ny variance from the procedures r equired by [Rule 11] which does not affect substantial righ ts shall be disregarded." Accordingly, we must determine if the

misinformation here affected Powell's substantial r ights.

Every circuit court of appeals that has considered a case involving a defendant who is misinformed as to the maximum term of supervised release, but who receive s a sentence with a combined term of imprisonment and supervised release that is less than the maximum po ssible penalty has concluded that the misinformation const ituted harmless error. See United States v. Raineri, 42 F. 3d 36 (1st Cir. 1994); United States v. Andrades, 179 F. 3d 131 (2d Cir. 1999); United States v. Gracia, 983 F.2d 6 25 (5th Cir. 1993); United States v. Fuentes-Mendoza, 56 F. 3d 1113

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Similarly, we need not address Powell's Apprendi c laim. Powell's sentence was enhanced based upon prior convictions that he conceded in his plea agreement. Accordingly, Apprendi does n ot apply. See Apprendi, 120 S.Ct. at 2362-63 ("other than the fac t of a prior conviction, any fact that increases the penalty for a crime bey ond the statutory maximum must be submitted to a jury and proved beyo nd a reasonable doubt.") (emphasis added).

9(9th Cir. 1995); United States v. Barry, 895 F.2d 7 02 (10th

Cir. 1990).

Perhaps because of this seemingly uniform approach, the government urges us to adopt a blanket rule that"a failure to explain a supervised release term at a Rule 11 h earing is harmless error if the term of incarceration imposed

, combined with the term of supervised release impose d, is less than the maximum sentence [the defendant was a ware of]." Government's br. at 15. However, we do not th ink that a blanket rule is appropriate.

In United States v. Cleary, 46 F.3d 307, 311 (3d Ci r. 1995), we held that a habeas petitioner under 28 U. S.C. S 2255, must show prejudice to obtain collateral re lief for a Rule 11 violation. There, the sentencing court fail ed to explain the "effects of special parole, including t he consequences of a violation, and that special parol e is different from and in addition to regular parole." Id. at 310. We held: "[n]ot only must Cleary demonstrate an err or of constitutional magnitude, but he also must show tha t he was prejudiced by that error, i.e., that he did not understand the consequences of his plea or that, if he had been properly advised about the effect of special p arole, he would not have pled guilty." Id. We found that the failure

there "did not rise to that level." Id.

However, we have not previously addressed this prec ise question on direct appeal. The government rests its argument for a bright line rule in part upon United States v. Electrodyne Systems Corp., 147 F.3d 250 (3d Cir. 1998). There, the district court erred in advising the def endant of the correct statutory fine for the offense charged in one of the counts to which the defendant pled guilty. Id. at 252. The court did, however, correctly advise the defend ant of the maximum fine that could be imposed on the remai ning count. The total fine that the court ultimately imp osed was

less than the stated total maximum on both counts. On direct appeal, we held that the court's error as to the

amount of the fine on one count was harmless. We concluded that, "when all is said and done, the imm utable

fact is . . . Defendant was fined . . . an amount b elow the exposure about which it was informed." Id. at 253.

10Nevertheless, though the analysis in Electrodyne i s

certainly relevant to our inquiry here, the case is distinguishable from the instant case because the defendant there was misinformed about a fine. Super vised release "is a deprivation of some portion of one's liberty imposed as a punitive measure for a bad act." Unite d States v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997)."A defe ndant on supervised release is subject to various terms a nd

conditions which restrict his freedom and which mak e him vulnerable to further punishment should he violate them. Such subsequent punishment may again include more imprisonment and more supervised release." Id. We c annot assume that misinformation about a possible depriva tion of liberty is equivalent to misinformation about a mon etary penalty.

The government also relies on our decision in Unite d States v. Mustafa, 238 F. 3d 485 (3d Cir. 2001), wh ere we also addressed errors in a Rule 11 colloquy in the context of a direct appeal. One of the arguments that we re jected in Mustafa is relevant to the government's position he re. Mustafa argued that the sentencing court erred in n ot inquiring into promises that had been made in relat ion to the change of plea. After reviewing the record we c oncluded that "the only reasonable conclusion that this reco rd supports is that Mustafa had been advised of counse l's best estimate of what the court would actually impose, a nd Mustafa was interpreting counsel's estimate as a`pr omise' as to the sentence he was going to receive." Id. at 491-92.

We noted:

Mustafa said absolutely nothing after his at torney informed the court of guidelines discussions , and he never said anything to suggest that his affi rmative response about other promises was anything m ore than a reference to `assurances' he had rece ived from his attorney as to what sentence would most likely be imposed.

Mustafa was told that the total maximum sent ence was 830 years of imprisonment. The sentence of imprisonment he received, though substantial (135 months), was far less than the maximum that he was aware of. Moreover, any alleged misrepresent ations

11that Mustafa's former counsel may have made

regarding sentencing calculations were dispe lled when Mustafa was informed in open court that ther e were no guarantees as to sentence, and that the cour t could sentence him to the maximum. Thus, we conclu de that Mustafa's answering `yes' to the court's inq uiry about promises is not grounds to invalidate his pl ea.

Id. Immediately thereafter, we stated the following in a

footnote:

We recognize that the maximum sentence autho rized by law is often so extraordinarily long that few defendants other than `career criminals' ple ad guilty with the expectation that the maximum senten ce applies to them. However, all that the law r equires is that the defendant be informed of his/her ex posure in pleading guilty. The law does not require th at a defendant be given a reasonably accurate `be st guess' as to what his/her actual sentence will be; nor could it, given the vagaries and variables of each def endant's circumstances and offending behavior. See Un ited States v. Cleary, 46 F.3d 307, 311 (3rd Cir. 1995).

Id. n.5.6

The government now argues that Mustafa creates a blanket rule that Rule 11 error is harmless so long as the defendant is not sentenced to a term longer than th e maximum he or she is advised of. Put another way, t he government is arguing that any such discrepancy cou ld not have affected Powell's decision to plead guilty bec ause the sentence imposed was within the range of possibilit ies a defendant accepts when deciding whether to plead gu ilty. We disagree. Such a bright line rule obfuscates its own underlying rational, and Mustafa is not to the cont rary.

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6. Mustafa also argued that the district court comm itted reversible error in not informing him that restitution could be orde red as part of the sentence in violation of Rule 11(c)(1). We noted th at the government had

advised Mustafa "that he faced a fine of several mi llion dollars but was actually ordered to pay far less than that amount i n restitution." Id. at 490 (emphasis in original). While recognizing that restitution is not the same as a fine, we relied on Electrodyne and found the distinction irrelevant in context of that specific Rule 11 erro r. Id. at 490.

12Mustafa is distinguishable from the case at bar bec ause

here the government affirmatively misled Powell dur ing the plea colloquy and in the guilty plea agreement as t o the maximum supervised term he could receive. In contra st, Mustafa involved the defendant interpreting his own counsel's best estimate as a "promise" as to the se ntence he would receive. We acknowledged that few defendants actually expect that they will receive the statutor y maximum they have been informed of,7 but explained that the law does not require that the defendant be give n an accurate guess of what his or her ultimate sentence will be.

Common sense suggests that a defendant's realistic expectation of the sentence he or she will receive will often include considerations of applicable ranges under t he Sentencing Guidelines. However, the colloquy under Rule 11 occurs when a defendant first enters a guilty pl ea. This, in turn, will almost always occur before the senten cing court has an opportunity to review a Presentence Re port. Accordingly, the court will not be in a position to know what the realistic sentencing range will be when th e court explains the maximum range of sentences to the defe ndant at the Rule 11 hearing.

While the Sentencing Guidelines certainly ar e a relevant consideration for defendants enteri ng a plea of guilty, the district court at the time of th e plea allocution frequently has too little informa tion available to provide defendant with an accurate senten cing range. For example, probation department off icials

often have not scored or researched defendan t's criminal history, and the court is unaware o f upward or downward departure motions that the gover nment or defense counsel may pursue. Both of these factors have significant impacts on Sentencing Guide line

calculations.

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7. Several other circuit courts of appeals have als o observed that a defendant might reasonably expect that he or she wi ll not be sentenced to the statutory maximum. See United States v. Rain eri, 42 F.3d at 42; United States v. Andrades, 169 F.3d at 134; United States v. Whyte, 3 F.3d 129, 130 (5th Cir. 1993).

13Andrades, 169 F.3d at 134.

The court in Andrades, cited United States v. Raine ri, in declaring: "we decline to adopt an inflexible rule" for resolving issues under Rule 11(h) Id. As we discuss below, Raineri provides for an individualized and flexible inquiry

into determinations of harmless error under Rule 11 (h). Nevertheless, despite its pronouncement that it was "declin[ing] to adopt an inflexible rule," the cour t in Andrades established what appears to be the kind of bright line inflexible rule urged upon us here. The court stated:

We now join with those circuit courts of app eals holding that the error is harmless where the district court misinforms a defendant of the applicab le supervised release term and the total senten ce of imprisonment and supervised release actually imposed is less than that described during the plea allocution.

169 F.3d at 134.

We believe the court in Andrades was correct in sta ting its intent to reject a bright line rule based upon the reasoning in United States v. Raineri. First of all , we note that the Supreme Court has cautioned against taking errors committed during guilty plea proceedings lig htly. See McCarthy v. United States, 394 U.S. 459 (1969). A b right line rule, while easy to apply, minimizes the impor tance of the inquiry that must be undertaken when examining an individual decision to waive fundamental constituti onal guarantees as is the case when a defendant enters a guilty plea. Accordingly, "[a]s the Advisory Notes to the 1983 amendment to Rule 11 (adding subsection 11(h)) indi cate, `it is still true, as the Supreme Court pointed out in McCarthy, that thoughtful and careful compliance wi th Rule

11 best serves the fair and efficient administratio n of criminal justice. . . .' " United States v. Barry, 895 F.2d 702, 705 (10th Cir. 1990). We believe the government's p osition here moves us away from thoughtful and careful compliance with Rule 11 and towards mechanical inqu iries

into violations of the Rule.

Moreover, the difficulty in establishing a bright l ine rule is evidenced by the varying approaches that courts of appeals have taken in attempting to define harmless error

14under Rule 11.8 The practical difficulty of such an approach

is exemplified in the thoughtful analysis of the Co urt of Appeals for the First Circuit in Raineri. There, th e court provides the following hypothetical:

imagine a defendant who is wrongly told at t he Rule 11 hearing that the maximum penalty for his cri me is five years when in fact the maximum penalty is 15 years. The defendant might fairly expect, given his own past history and limited role in the offense, tha t the maximum sentence (whatever it might be) woul d not be likely to be imposed. If he then pled guilty and thereafter received a five-year sentence, he might reasonably think that the misinformation had prejudiced him in a rather concrete way.

42 F.3d at 41 (1st Cir. 1994) (citing United States v. Whyte, 3 F.3d 129, 130 (5th Cir. 1993)).9 The defendant in this

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8. See, e.g., United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993)
(en banc) (focusing on "whether the defendant's knowled ge and comprehension of the full and correct information w ould have been likely to affect his willingness to plead guilty"); United States v. Goins, 51

F.3d 400, 402 (4th Cir. 1995) (same); United States v. R aineri, supra, (ascertaining whether the Rule 11 error led the def endant to reasonably expect a lesser sentence than he actually received) ; United States v. Andrades, supra, (refusing to adopt a rigid rule; U nited States v.

FuentesMendoza, 56 F.3d 1113, (9th Cir. 1995) (stating gen erally that error was

harmless where the maximum term of restricted liber ty that the

defendant faced was less than the sentence he or sh e was informed of); United States v. Barry, supra, (determining whether the Rule 11 error had a "significant influence" on the defendant's de cision to plead guilty); United States v. Syal, 963 F.2d 900, 906 (6th Cir. 1992) (stating that "[s]ubstantial rights may not be affected when a de fendant is informed of the maximum penalty and that penalty markedly excee ds the penalty the defendant received, including the period of supervi sed release and any additional incarceration time that might result fro m violation of [the] supervised release condition").

9. The error in United States v. Whyte, was far mor e egregious than the error here. There, the defendant's written plea agr eement informed him he "was subject to a minimum term of five years, an d a maximum term of twenty years imprisonment, a minimum term of fou r years supervised release, and a fine of up to $2,000,000." Whyte, 3 F.3d at 129. The district court confirmed those ranges during the Ru le 11 colloquy.

15example might well be able to convince a reviewing court

that the misinformation severely hampered his abili ty to tender an intelligent and knowing guilty plea becau se he was precluded from assessing the risks and benefits of pleading guilty. In the words of the Court of Appea ls for the Fifth Circuit, the defendant's knowledge of the cor rect information "would have been likely to affect his w illingness to plead guilty." Johnson, 1 F.3d at 302.

The court in Raineri, therefore appropriately focus ed upon whether "the misinformation . . . at the Rule 11 hearing lead [the defendant] to expect a lesser pen alty than he actually received." Id. at 42. In doing so, the court rejected the position of those courts that have con cluded that "a defendant should not be heard to complain i f he ultimately gets the benefit of the lesser sentence that was inaccurately described . . . [when he pled guilty]" so long as the sentence is less than the sentence indicated by the judge. Id. at 42 (citing cases).10

Although the inquiry into what the defendant might fairly expect can sometimes be answered by focusing upon t he defendant's awareness of his or her maximum exposur e, the example in Raineri demonstrates that such an ap proach

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However, "[i]n truth, Whyte was subject to a mandat ory minimum term of ten years, not five, a possible maximum term of life, not twenty years, a supervised release term of five years, not four, and a fine of $4,000,000, not $2,00,000." Id., at 130. Neverthele ss, the district court subsequently held that its failure to inform Whyte of the correct exposure was harmless error. The court of appeals r eversed.

10. We recognize that some of the language of the o pinion in Raineri, like the language in Andrades, suggests that the court i s applying a bright line rule. For example, the court states: "[c]ourts have commonly held

that such errors are harmless when the defendant re ceives a combined sentence of imprisonment and supervised release tha t is less than the maximum term of imprisonment earlier described. The same rule is followed where the defendant is required to pay res titution in an amount less than the potential fine of which he is warned. " 42 F.3d at 42. However, we do not interpret the court as adopting such a rule -- especially in view of the persuasive and helpful hy pothetical we have quoted above. Rather, we believe the court was simp ly noting that a bright line rule has been used to resolve issues ar ising under Rule 11.

16will not always resolve the analysis in a manner co nsistent

with the gravity of the court's inquiry or the fund amental rights that are involved. We must not forget that t he proper inquiry here is the validity of the defendant's wai ver of constitutional guarantees.

This is a subjective, highly individualized test. W e must focus on the defendant's ability to tender a knowin g and intelligent waiver of constitutional rights given t he misinformation he or she received. Johnson, supra. For example, in United States v. Goins, 51 F.3d 400 (4t h Cir. 1995), the trial court's failure to properly inform a defendant about a mandatory sentence was ruled not to be harmless under Rule 11(h). In reviewing the error, the court of appeals focused upon "whether the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his wi llingness to plead guilty." Id. at 402 (citing United States v. Johnson, 1 F.3d at 302.)11

We conclude that an error will be regarded as harml ess under Rule 11(h) only if the government can establi sh that the error is unlikely to have affected a defendant' s willingness to waive his or her rights and enter a plea of guilty. See United States v. Reynoso, 254 F.3d 467, 475 (3d Cir. 2001) (distinguishing the burden of proof unde r harmless error review from the burden of proof unde r plain error review).

In conducting that inquiry we must obviously consid er the nature of the error, and determine if, given th e entire record (including the defendant's individualized circumstances, criminal record, role in the offense , and concession for pleading guilty), it affirmatively a ppears unlikely that the error materially hampered his or her

___________________________________________________ ______________

11. In making this determination, the court alluded to three factors: 1) "what the defendant actually knows when he pleads g uilty on the basis of an affirmative indication in the record;" 2) the additional information the defendant would have been advised of in complia nce with Rule 11; and 3) "how the additional or corrected information would have likely affected the defendant's decision." Id. (citing Uni ted States v. Padilla,

23 F.3d 1220, 1222 (7th Cir. 1994) and United States v . Johnson, 1 F.3d 296, 302 (5th Cir. 1993)).

17ability to assess the risks and benefits of pleadin g guilty. At

first blush, it may appear that such an inquiry is very straightforward whenever, as here, a defendant is misinformed about the amount of supervised release he or she is exposed to, but is correctly informed that t he maximum incarceration is life imprisonment, and the ultimate sentence (including supervised release) is substantially less than life. However, focusing onl y upon the severity of the maximum sentence will sometimes oversimplify the inquiry. See Raineri, supra.

A defendant with a history of addiction may plead g uilty in return for a sentence that lengthens imprisonmen t while reducing supervised release, and not plead guilty t o a sentence with a longer "tail" of supervised release and a somewhat shorter period of incarceration. Such a de fendant may feel that his or her addiction will so impact t he potential for successful special parole that extend ed incarceration provides a better chance of rehabilit ation and/or less confinement in the "long run." If such a defendant is misinformed about the amount of superv ised release that can be imposed he or she may not be ab le to accurately gauge the risks of pleading guilty. The resulting error may not be harmless therefore, even if the se ntence that is ultimately imposed is less than the maximum imprisonment authorized by law and explained to

defendant.

Here, Powell was on probation at the time of the in stant offense. As discussed above, he may have concluded, despite his horrendous prior record, that he would not receive the maximum sentence. However, given his cr iminal history, a statutory maximum of life imprisonment, and Powell's knowledge that the court had to impose at least the 15 year mandatory minimum, we can not agree that th e error in informing him of supervised release hamper ed his ability to gauge the risks and benefits of pleading guilty. Nothing on this record supports that claim. We reco gnize that Powell expected that he would not receive more than three years of supervised release. The supervised r elease term, however, is only one of the many factors that Powell had to weigh when deciding whether or not to plead guilty.

18Before pleading guilty Powell understood that the

government would make whatever sentencing recommendation it deemed appropriate. Powell agreed that the court could impose a sentence of life imprisonm ent, and that the court had to impose at least the 15-year mandatory minimum term of imprisonment and a three year term of supervised release. Powell was aware t hat the court was not bound by any of the terms of the plea agreement, and that he could not withdraw his plea if the court declined to follow any recommendation, motion or stipulation contained in the agreement. Powell and the government also stipulated that Powell's offense le vel was a 33 and that he was eligible for a three-level downw ard departure for acceptance of responsibility. The sen tence reduction triggered by that departure would have be en lost if Powell had chosen to go to trial.

Despite Powell's current focus on the extra two yea rs of supervised release that he was not expecting, we ar e satisfied that he would not have done anything diff erently had he known that he was exposing himself to five y ears of supervised release as opposed to three years at the conclusion of his prison sentence. Accordingly, we hold that the error here was harmless under Rule 11(h). That does not, however, mean that Powell is entitled to no re lief.

2. Whether the Government Breached the Guilty Plea Agreement

Powell contends that he is entitled to specific performance because the government breached the gui lty plea agreement that told him that he was only expos ed to a maximum term of three years of supervised release . As noted above, it is undisputed that the government d id inform him that the plea would only expose him to t hree years supervised release, and the court confirmed t hat at the change of plea hearing.

However, to the government's credit, following oral argument, the United States Attorney's Office sent a letter stating that it would recommend a three-year term o f supervised release on remand if the district court asks for a recommendation from the government. The governmen t explained:

19The reason is that . . . if the defendant is given the

benefit of the doubt the plea agreement may conceivably be read as a promise by the gove rnment to recommend a term of supervised release of no more than three years. If that is accurate, and i n order to be conservative, we assume it is, that means th e government is bound by its agreement not to make any representation to the district court inconsi stent with the plea agreement. See, e.g., United States v. Nolan- Cooper, 155 F.3d 221, 236 (3d Cir. 1998). Wh ile the district court has authority under the plea agreement to enter any legal sentence, the government may not contradict any promise it made regarding the position the government will take.

Letter dated March 9, 2001 from Asst. U.S. Atty. Ro bert A. Zauzmer, Esq. and Asst. U.S. Atty. Kathleen Rice, c ounsel for the government. We commend AUSAs Zauzmer and Ri ce for their candor and the fairness of the position t hey have

taken here. Inasmuch as we must remand this matter under United States v. Mummert in any event to reso lve the motion for a downward departure, and inasmuch as th e government is willing to make this recommendation u pon remand, we conclude that the issue of Powell's supe rvised release is best resolved by affording the governmen t an opportunity to allow the district court to request a recommendation, and then sentence in the manner the court deems most appropriate under these circumstan ces.

IV. Conclusion

For the foregoing reasons, we will vacate the sente nce and remand to the district court for clarification of its reasons for denying Powell's pro se motion for down ward departure. The district court will then have an opp ortunity to elicit the government's position regarding resen tencing in view of Powell's claim for specific performance.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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