2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-2001

USA v. Powell

Precedential or Non-Precedential:

Docket 00-2440

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Recommended Citation

"USA v. Powell" (2001). 2001 Decisions. Paper 239.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/239
Filed 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 Appellant 
 Michael 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 release. He 

argues that the district court erred by not ruling on his pro 

se motion for a downward departure based upon conditions 

of confinement, and by imposing a period of supervised 

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 sentence 

and remand to the district court for clarification of its 

rationale for denying his motion for a downward departure. 

Our remand will also allow the district court to consider a 

concession regarding the supervised release that the 

government has made during the course of this appeal. 

I. Background 

On November 9, 1999, a grand jury charged Powell with 

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 

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

into a written plea agreement. In that agreement, the 

government stipulated that his "offense level is 33, 

pursuant to U.S.S.G. Section 4B1.4, because he is an 

armed career criminal," and that Powell was eligible 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 imprisonment, 

fines, forfeiture, restitution and other matters which the 

government deems appropriate." Id. at 127a. The plea 

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 Code, Section 

 924(e) filed by the government in this action. Therefore, 

 the defendant understands, agrees and has had 

 explained to him by counsel that the Court may impose 

 the following maximum sentence; Life imprisonment-- 

 with a 15-year mandatory minimum term of 

 imprisonment -- a $250,000 fine, a three-year term of 

 supervised release and a $100 special assessment. . . 

 The defendant may not withdraw his plea because the 

 Court declines to follow any recommendation, motion 

 or stipulation by the parties to this agreement. No one 

 has promised or guaranteed to the defendant what 

 sentence the Court will impose. 

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

_________________________________________________________________ 

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 court referred to in 

 section 922(g)(1) of this title for a violent felony or a serious 

drug 

 offense, or both, committed on occasions different 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)). 

 3 
provided that the stipulations did not bind the court 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 asked 

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 supervised 

 release and a $100.00 special assessment. There is a 

 fifteen-year mandatory minimum prison sentence, 

 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 guidelines will be 

 applied in your case, until after the presentence 

 investigation report is completed and you and the 

 Government have had an opportunity to challenge the 

 facts reported by the Probation Officer? 

 DEFENDANT: Yes. 

 *** 

 *** 

 THE COURT: Do you understand that the Court could 

 in appropriate circumstances, impose a sentence 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? 

 4 
 DEFENDANT: Yes. 

Id. 40a - 42a (emphasis added). The court accepted the 

guilty plea and ordered a Pre-sentence Investigation. 

Thereafter, while in custody awaiting sentencing, Powell 

sent a letter to the district court complaining of what he 

characterized as substandard conditions at the Hudson 

County Jail in New Jersey where he was being detained 

pending sentencing. He attached a list of those conditions, 

and argued that the conditions entitled him to a downward 

departure pursuant to United States v. Brinton , 139 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 sentencing 

range in the report was calculated between 180 to 210 

months of imprisonment.2 The PSI also stated "[i]f a term of 

imprisonment is imposed, the Court may impose a term of 

supervised release of not more than five years , pursuant to 

18 U.S.C. S 3583(b)(1)." PSI at P 53 (emphasis added). 

Defense counsel objected to the recommendations in the 

PSI based upon the Supreme Court's decision in Apprendi 

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). He 

argued that Powell should not be subjected to sentencing 

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 allege the 

predicate convictions for those enhancements. Even though 

Powell had previously been informed that the maximum 

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 210 

months followed by a period of supervised release of three 

_________________________________________________________________ 

2. The PSI stated "based on a total offense level of 30 and a criminal 

history category of VI, the guideline range for imprisonment is 168 to 

210 months. However, since the mandatory minimum term of 

imprisonment is 180 months, the effective guideline range is 180 to 

210 months." PSI at P 51 (emphasis in original). 

 5 
to five years. Powell did not object. The court interpreted 

Powell's letter about the conditions at the Hudson County 

facility as a pro se motion for a downward departure 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 court 

imposed that sentence without ever formally ruling upon 

Powell's motion for a downward departure based upon the 

conditions of his presentence detention. This appeal 

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 decisions 

concerning departures from the Sentencing Guidelines for 

abuse of discretion." United States v. Abuhouran, 161 F.3d 

206, 209 (3d Cir. 1998). However, when reviewing legal 

questions regarding the application of the guidelines, "we 

need not defer to the district court's conclusion, and we will 

review its holding for legal error." Id. Here, however, we do 

not know why the district court rejected Powell's request for 

a downward departure. The court merely announced that it 

would treat Powell's letter as a pro se motion for a 

departure, but sentenced Powell without departing from the 

applicable guideline range, and without explicitly ruling on 

Powell's pro se motion. For the purposes of this appeal, we 

will assume that the court's sentence to the suggested 

guideline range constituted an implicit denial of Powell's 

motion for a downward departure. In United States v. 

Mummert we explained our jurisdiction to review a district 

court's denial of a motion for departure. We stated: 

 [I]f the ruling was based on the district court's belief 

 that a departure was legally impermissible, we have 

 jurisdiction to determine whether the district court's 

 6 
 understanding of the law was correct. By contrast, if 

 the district court's ruling was based on an exercise of 

 discretion, we lack jurisdiction [under United 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 agreement 

included an understanding as to the supervised release 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.3d 250, 

252 (3d Cir. 1998). Our review of whether the government 

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 ruling 

on his request for a downward departure, we have no way 

of knowing why the district court denied the requested 

departure. As noted above, under United States v. Denardi, 

892 F.2d 269, 271-72 (3rd Cir. 1989), if the court chose to 

do so as an exercise of discretion, we have no jurisdiction 

to review its decision. The government concedes that under 

United States v. Mummert, this matter should be remanded 

to afford the district court an opportunity to explain its 

refusal to grant Powell's pro se motion. In Mummert, as 

here, the defendant appealed the district court's failure to 

grant a requested downward departure following a guilty 

_________________________________________________________________ 

3. In the alternative, Powell argues that he should be allowed to 

withdraw his guilty plea. 

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

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

 this rule which does not effect substantial rights shall be 

 disregarded. 

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

 7 
plea. The district court had not given any explanation 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 to clarify 

 the basis for its ruling. 

34 F.3d at 205. 

Accordingly, we will remand so that the district court can 

clarify its rejection of Powell's motion for a downward 

departure. 

B. Powell's Sentence 

Powell's supervised release presents a more difficult 

question. Powell contends that he is entitled to specific 

performance of the plea agreement or, in the alternative, 

withdrawal of his guilty plea. As noted above, Powell's 

written plea agreement expressly stated that the court 

could not impose more than three years of supervised 

release. Similarly, the Assistant United States Attorney 

informed Powell that he was not exposed to more than 

three years of supervised release at the Rule 11 change of 

plea hearing, and that statement was never corrected by 

the court. However, Powell's sentence included a five year 

term of supervised release as allowed under 18 U.S.C. 

S 924. Powell therefore argues that he did not voluntarily 

and intelligently change his plea, and that the government 

breached its "promise" that he would not be exposed to 

more than three years of supervised release. We will 

address each argument in turn.5 

_________________________________________________________________ 

5. Powell also argues that we should vacate his sentence based on our 

decision in United States v. Gilchrist, 130 F.2d 1141, 1133 (3d Cir. 

1997), where we vacated the defendant's sentence because the district 

court caused a breach of the defendant's guilty plea agreement. There, 

however, the parties entered into a guilty plea agreement pursuant to 

Rule 11(e)(1)(C), which is binding on the court once accepted. Because 

there is no indication in the record before us that the parties entered 

into the guilty plea agreement here pursuant to Rule 11(e)(1)(C), we find 

that this assertion is without merit, and need not be addressed. 

 8 
1. 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 protections. See 

North Carolina v. Alford, 400 U.S. 25, 30 (1970); McCarthy 

v. United States, 394 U.S.459, 465 (1969). Accordingly, 

under Fed. R. Crim.P. 11(c) "[b]efore accepting a plea of 

guilty . . . the court must address the defendant personally 

in open court and inform the defendant of, and determine 

that the defendant understands . . . the maximum possible 

penalty provided by law, including the effect of any. . . 

supervised release term." It is undisputed that Powell was 

misinformed about the length of supervised release that he 

could receive. 

Nevertheless, not all Rule 11 errors invalidate a guilty 

plea. Fed. R. Crim. P. 11(h), entitled "Harmless Error," 

provides that "[a]ny variance from the procedures required 

by [Rule 11] which does not affect substantial rights shall 

be disregarded." Accordingly, we must determine if the 

misinformation here affected Powell's substantial rights. 

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 receives a 

sentence with a combined term of imprisonment and 

supervised release that is less than the maximum possible 

penalty has concluded that the misinformation constituted 

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 625 (5th 

Cir. 1993); United States v. Fuentes-Mendoza, 56 F.3d 1113 

_________________________________________________________________ 

Similarly, we need not address Powell's Apprendi claim. Powell's 

sentence was enhanced based upon prior convictions that he conceded 

in his plea agreement. Accordingly, Apprendi does not apply. See 

Apprendi, 120 S.Ct. at 2362-63 ("other than the fact of a prior 

conviction, 

any fact that increases the penalty for a crime beyond the statutory 

maximum must be submitted to a jury and proved beyond a reasonable 

doubt.") (emphasis added). 

 9 
(9th Cir. 1995); United States v. Barry, 895 F.2d 702 (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 hearing is 

harmless error if the term of incarceration imposed, 

combined with the term of supervised release imposed, is 

less than the maximum sentence [the defendant was aware 

of]." Government's br. at 15. However, we do not think that 

a blanket rule is appropriate. 

In United States v. Cleary, 46 F.3d 307, 311 (3d Cir. 

1995), we held that a habeas petitioner under 28 U.S.C. 

S 2255, must show prejudice to obtain collateral relief for a 

Rule 11 violation. There, the sentencing court failed to 

explain the "effects of special parole, including the 

consequences of a violation, and that special parole is 

different from and in addition to regular parole." Id. at 310. 

We held: "[n]ot only must Cleary demonstrate an error of 

constitutional magnitude, but he also must show that 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 parole, 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 precise 

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 defendant 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 defendant of 

the maximum fine that could be imposed on the remaining 

count. The total fine that the court ultimately imposed 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 immutable 

fact is . . . Defendant was fined . . . an amount below the 

exposure about which it was informed." Id. at 253.

 10 
Nevertheless, though the analysis in Electrodyne is 

certainly relevant to our inquiry here, the case is

distinguishable from the instant case because the 

defendant there was misinformed about a fine. Supervised 

release "is a deprivation of some portion of one's liberty 

imposed as a punitive measure for a bad act." United States 

v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997)."A defendant 

on supervised release is subject to various terms and 

conditions which restrict his freedom and which make him 

vulnerable to further punishment should he violate them. 

Such subsequent punishment may again include more 

imprisonment and more supervised release." Id. We cannot 

assume that misinformation about a possible deprivation of 

liberty is equivalent to misinformation about a monetary 

penalty. 

The government also relies on our decision in United 

States v. Mustafa, 238 F. 3d 485 (3d Cir. 2001), where we 

also addressed errors in a Rule 11 colloquy in the context 

of a direct appeal. One of the arguments that we rejected in 

Mustafa is relevant to the government's position here. 

Mustafa argued that the sentencing court erred in not 

inquiring into promises that had been made in relation to 

the change of plea. After reviewing the record we concluded 

that "the only reasonable conclusion that this record 

supports is that Mustafa had been advised of counsel's best 

estimate of what the court would actually impose, and 

Mustafa was interpreting counsel's estimate as a`promise' 

as to the sentence he was going to receive." Id. at 491-92. 

We noted: 

 Mustafa said absolutely nothing after his attorney 

 informed the court of guidelines discussions, and he 

 never said anything to suggest that his affirmative 

 response about other promises was anything more 

 than a reference to `assurances' he had received from 

 his attorney as to what sentence would most likely be 

 imposed. 

 Mustafa was told that the total maximum sentence 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 misrepresentations 

 11 
 that Mustafa's former counsel may have made 

 regarding sentencing calculations were dispelled when 

 Mustafa was informed in open court that there were no 

 guarantees as to sentence, and that the court could 

 sentence him to the maximum. Thus, we conclude that 

 Mustafa's answering `yes' to the court's inquiry about 

 promises is not grounds to invalidate his plea. 

Id. Immediately thereafter, we stated the following in a 

footnote: 

 We recognize that the maximum sentence authorized 

 by law is often so extraordinarily long that few 

 defendants other than `career criminals' plead guilty 

 with the expectation that the maximum sentence 

 applies to them. However, all that the law requires is 

 that the defendant be informed of his/her exposure in 

 pleading guilty. The law does not require that a 

 defendant be given a reasonably accurate `best guess' 

 as to what his/her actual sentence will be; nor could it, 

 given the vagaries and variables of each defendant's 

 circumstances and offending behavior. See United 

 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 the 

maximum he or she is advised of. Put another way, the 

government is arguing that any such discrepancy could not 

have affected Powell's decision to plead guilty because the 

sentence imposed was within the range of possibilities a 

defendant accepts when deciding whether to plead guilty. 

We disagree. Such a bright line rule obfuscates its own 

underlying rational, and Mustafa is not to the contrary. 

_________________________________________________________________ 

6. Mustafa also argued that the district court committed reversible error 

in not informing him that restitution could be ordered as part of the 

sentence in violation of Rule 11(c)(1). We noted that the government had 

advised Mustafa "that he faced a fine of several million dollars but was 

actually ordered to pay far less than that amount in 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 error. Id. at 490. 

 12 
Mustafa is distinguishable from the case at bar because 

here the government affirmatively misled Powell during the 

plea colloquy and in the guilty plea agreement as to the 

maximum supervised term he could receive. In contrast, 

Mustafa involved the defendant interpreting his own

counsel's best estimate as a "promise" as to the sentence he 

would receive. We acknowledged that few defendants 

actually expect that they will receive the statutory 

maximum they have been informed of,7 but explained that 

the law does not require that the defendant be given 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 the 

Sentencing Guidelines. However, the colloquy under Rule 

11 occurs when a defendant first enters a guilty plea. This, 

in turn, will almost always occur before the sentencing 

court has an opportunity to review a Presentence Report. 

Accordingly, the court will not be in a position to know 

what the realistic sentencing range will be when the court 

explains the maximum range of sentences to the defendant 

at the Rule 11 hearing. 

 While the Sentencing Guidelines certainly are a 

 relevant consideration for defendants entering a plea of 

 guilty, the district court at the time of the plea 

 allocution frequently has too little information available 

 to provide defendant with an accurate sentencing 

 range. For example, probation department officials 

 often have not scored or researched defendant's 

 criminal history, and the court is unaware of upward 

 or downward departure motions that the government 

 or defense counsel may pursue. Both of these factors 

 have significant impacts on Sentencing Guideline 

 calculations. 

_________________________________________________________________ 

7. Several other circuit courts of appeals have also observed that a 

defendant might reasonably expect that he or she will not be sentenced 

to the statutory maximum. See United States v. Raineri, 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). 

 13 
Andrades, 169 F.3d at 134. 

The court in Andrades, cited United States v. Raineri, 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 court 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 appeals 

 holding that the error is harmless where the district 

 court misinforms a defendant of the applicable 

 supervised release term and the total sentence 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 stating 

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 lightly. See 

McCarthy v. United States, 394 U.S. 459 (1969). A bright 

line rule, while easy to apply, minimizes the importance of 

the inquiry that must be undertaken when examining an 

individual decision to waive fundamental constitutional 

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)) indicate, 

`it is still true, as the Supreme Court pointed out in 

McCarthy, that thoughtful and careful compliance with Rule 

11 best serves the fair and efficient administration of 

criminal justice. . . .' " United States v. Barry, 895 F.2d 702, 

705 (10th Cir. 1990). We believe the government's position 

here moves us away from thoughtful and careful 

compliance with Rule 11 and towards mechanical inquiries 

into violations of the Rule. 

Moreover, the difficulty in establishing a bright line rule 

is evidenced by the varying approaches that courts of 

appeals have taken in attempting to define harmless error 

 14 
under Rule 11.8 The practical difficulty of such an approach 

is exemplified in the thoughtful analysis of the Court of 

Appeals for the First Circuit in Raineri. There, the court 

provides the following hypothetical: 

 imagine a defendant who is wrongly told at the Rule 11 

 hearing that the maximum penalty for his crime 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, that the 

 maximum sentence (whatever it might be) would 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 

_________________________________________________________________ 

8. See, e.g., United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) 

(en 

banc) (focusing on "whether the defendant's knowledge and 

comprehension of the full and correct information would 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. Raineri, supra, 

(ascertaining whether the Rule 11 error led the defendant to reasonably 

expect a lesser sentence than he actually received); United States v. 

Andrades, supra, (refusing to adopt a rigid rule; United States v. 

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

harmless where the maximum term of restricted liberty that the 

defendant faced was less than the sentence he or she was informed of); 

United States v. Barry, supra, (determining whether the Rule 11 error 

had a "significant influence" on the defendant's decision 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 defendant is informed of 

the maximum penalty and that penalty markedly exceeds the penalty the 

defendant received, including the period of supervised release and any 

additional incarceration time that might result from violation of [the] 

supervised release condition"). 

9. The error in United States v. Whyte, was far more egregious than the 

error here. There, the defendant's written plea agreement informed him 

he "was subject to a minimum term of five years, and a maximum term 

of twenty years imprisonment, a minimum term of four 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 Rule 11 colloquy. 

 15 
example might well be able to convince a reviewing court 

that the misinformation severely hampered his ability to 

tender an intelligent and knowing guilty plea because he 

was precluded from assessing the risks and benefits of 

pleading guilty. In the words of the Court of Appeals for the 

Fifth Circuit, the defendant's knowledge of the correct 

information "would have been likely to affect his willingness 

to plead guilty." Johnson, 1 F.3d at 302. 

The court in Raineri, therefore appropriately focused 

upon whether "the misinformation . . . at the Rule 11 

hearing lead [the defendant] to expect a lesser penalty than 

he actually received." Id. at 42. In doing so, the court 

rejected the position of those courts that have concluded 

that "a defendant should not be heard to complain if 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 the 

defendant's awareness of his or her maximum exposure, 

the example in Raineri demonstrates that such an approach 

_________________________________________________________________ 

However, "[i]n truth, Whyte was subject to a mandatory 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. Nevertheless, the district court 

subsequently held that its failure to inform Whyte of the correct 

exposure was harmless error. The court of appeals reversed. 

10. We recognize that some of the language of the opinion in Raineri, like 

the language in Andrades, suggests that the court is applying a bright 

line rule. For example, the court states: "[c]ourts have commonly held 

that such errors are harmless when the defendant receives a combined 

sentence of imprisonment and supervised release that is less than the 

maximum term of imprisonment earlier described. The same rule is 

followed where the defendant is required to pay restitution 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 hypothetical we have 

quoted above. Rather, we believe the court was simply noting that a 

bright line rule has been used to resolve issues arising under Rule 11. 

 16 
will not always resolve the analysis in a manner consistent 

with the gravity of the court's inquiry or the fundamental 

rights that are involved. We must not forget that the proper 

inquiry here is the validity of the defendant's waiver of 

constitutional guarantees. 

This is a subjective, highly individualized test. We must 

focus on the defendant's ability to tender a knowing and 

intelligent waiver of constitutional rights given the 

misinformation he or she received. Johnson, supra. For 

example, in United States v. Goins, 51 F.3d 400 (4th 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 willingness 

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 harmless 

under Rule 11(h) only if the government can establish 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 under 

harmless error review from the burden of proof under plain 

error review). 

In conducting that inquiry we must obviously consider 

the nature of the error, and determine if, given the entire 

record (including the defendant's individualized 

circumstances, criminal record, role in the offense, and 

concession for pleading guilty), it affirmatively appears 

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 guilty on the basis 

of an affirmative indication in the record;" 2) the additional information 

the defendant would have been advised of in compliance with Rule 11; 

and 3) "how the additional or corrected information would have likely 

affected the defendant's decision." Id. (citing United States v. Padilla, 

23 

F.3d 1220, 1222 (7th Cir. 1994) and United States v. Johnson, 1 F.3d 

296, 302 (5th Cir. 1993)). 

 17 
ability to assess the risks and benefits of pleading 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 the 

maximum incarceration is life imprisonment, and the

ultimate sentence (including supervised release) is

substantially less than life. However, focusing only upon 

the severity of the maximum sentence will sometimes

oversimplify the inquiry. See Raineri, supra. 

A defendant with a history of addiction may plead guilty 

in return for a sentence that lengthens imprisonment while 

reducing supervised release, and not plead guilty to a 

sentence with a longer "tail" of supervised release and a 

somewhat shorter period of incarceration. Such a defendant 

may feel that his or her addiction will so impact the 

potential for successful special parole that extended 

incarceration provides a better chance of rehabilitation 

and/or less confinement in the "long run." If such a 

defendant is misinformed about the amount of supervised 

release that can be imposed he or she may not be able to 

accurately gauge the risks of pleading guilty. The resulting 

error may not be harmless therefore, even if the sentence 

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 instant 

offense. As discussed above, he may have concluded,

despite his horrendous prior record, that he would not 

receive the maximum sentence. However, given his criminal 

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 the 

error in informing him of supervised release hampered his 

ability to gauge the risks and benefits of pleading guilty. 

Nothing on this record supports that claim. We recognize 

that Powell expected that he would not receive more than 

three years of supervised release. The supervised release 

term, however, is only one of the many factors that Powell 

had to weigh when deciding whether or not to plead guilty. 

 18 
Before 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 imprisonment, 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 that 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 level was a 

33 and that he was eligible for a three-level downward 

departure for acceptance of responsibility. The sentence 

reduction triggered by that departure would have been lost 

if Powell had chosen to go to trial. 

Despite Powell's current focus on the extra two years of 

supervised release that he was not expecting, we are 

satisfied that he would not have done anything differently 

had he known that he was exposing himself to five years 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 relief. 

2. Whether the Government Breached the 

Guilty Plea Agreement 

Powell contends that he is entitled to specific 

performance because the government breached the guilty 

plea agreement that told him that he was only exposed to 

a maximum term of three years of supervised release. As 

noted above, it is undisputed that the government did 

inform him that the plea would only expose him to three 

years supervised release, and the court confirmed that 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 of 

supervised release on remand if the district court asks for 

a recommendation from the government. The government 

explained: 

 19 
 The 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 government to 

 recommend a term of supervised release of no more 

 than three years. If that is accurate, and in order to be 

 conservative, we assume it is, that means the 

 government is bound by its agreement not to make any 

 representation to the district court inconsistent with 

 the plea agreement. See, e.g., United States v. Nolan- 

 Cooper, 155 F.3d 221, 236 (3d Cir. 1998). While 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. Robert A. 

Zauzmer, Esq. and Asst. U.S. Atty. Kathleen Rice, counsel 

for the government. We commend AUSAs Zauzmer and Rice 

for their candor and the fairness of the position they have 

taken here. Inasmuch as we must remand this matter 

under United States v. Mummert in any event to resolve the 

motion for a downward departure, and inasmuch as the 

government is willing to make this recommendation upon 

remand, we conclude that the issue of Powell's supervised 

release is best resolved by affording the government an 

opportunity to allow the district court to request a 

recommendation, and then sentence in the manner the

court deems most appropriate under these circumstances. 

IV. Conclusion 

For the foregoing reasons, we will vacate the sentence 

and remand to the district court for clarification of its 

reasons for denying Powell's pro se motion for downward 

departure. The district court will then have an opportunity 

to elicit the government's position regarding resentencing 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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