*

Honorable Robert L. Vining, Jr., Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2496.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert G. SIEGEL, a.k.a. Bobby the Beak, Defendant-Appellant.

Dec. 30, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 93-180-Cr-T-24C), Susan C. Buckler,

Judge.

Before TJOFLAT and COX, Circuit Judges, and VINING*

, Senior

District Judge.

VINING, Senior District Judge:

I. INTRODUCTION

In this appeal, we review the validity of a guilty plea. The

district court failed to advise the defendant of the maximum and

mandatory penalties associated with several of the charged

offenses. We REVERSE in part, VACATE, and REMAND for further

proceedings consistent with this opinion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 30, 1993, Robert Siegel and others were indicted for

robbing several jewelry stores across the United States.

Specifically, the indictment charged Siegel with engaging in a

pattern of racketeering activities, in violation of 18 U.S.C. §

1962(c) (Count One); conspiracy to engage in a pattern of

racketeering activity, in violation of 18 U.S.C. § 1962(d) (Count

Two); conspiracy to interfere with commerce by threats or
violence-robbery, in violation of 18 U.S.C. § 1951(a) (Count

Three); interference with commerce by threats of violence-robbery,

in violation of 18 U.S.C. § 1951(a) (Counts Four through Six); and

the use of firearms during and in relation to the commission of a

federal crime of violence, in violation of 18 U.S.C. § 924(c)

(Counts Seven through Nine).

Following jury selection for Siegel and his codefendants but

prior to opening statements, Siegel decided to plead guilty to all

nine counts of the indictment without a negotiated plea agreement.

The district court relied upon the Assistant United States Attorney

to advise Siegel of the penalties for each charged offense. At the

direction of the district court, Siegel was informed by the

government that he faced a maximum sentence of twenty years

imprisonment on Counts One, Two, and Three. He was not told,

however, of the maximum sentences that he faced on Counts Four,

Five, and Six. As for Counts Seven, Eight, and Nine, Siegel was

informed by the government that "the maximum sentence on those

charges, the 924(c), the first one is five years consecutive to

that imposed on the, uh, general sentence, and a two hundred and

fifty thousand dollar fine; the second 924(c) is an additional 20

years consecutive to what is imposed on the main charge." R2-473-

28.

Siegel was not informed by the district court or by the

government at any time during the Rule 11 proceedings that these

were not merely maximum sentences, but mandatory ones, nor was he

told that the mandatory twenty-year sentence on Count Eight had to

be served consecutively to the five years on Count Seven. In
addition, he was not informed that there was a twenty-year

mandatory sentence on Count Nine to be served consecutively to all

the other counts. Moreover, neither the court nor the government

informed Siegel that by pleading guilty to Count Seven he increased

the mandatory sentences on Counts Eight and Nine.

When questioned by the district court, Siegel replied that he

understood the sentence. He stated, however, that he had not

discussed with his counsel the applicable ranges under the

Sentencing Guidelines or potential penalties for the offenses.

Siegel noted that he did not wish to have the opportunity to

discuss these matters with his attorney. Siegel's counsel

indicated that he and Siegel had discussed maximum penalties but

noted that any discussions concerning the Sentencing Guidelines had

been entirely speculative.

Following his guilty plea, Siegel received a copy of the

presentence investigation report, which recommended a sentence of

235-240 months imprisonment for Counts One through Six, plus a

consecutive five-year term for Count Seven, a consecutive

twenty-year term for Count Eight, and another consecutive

twenty-year sentence for Count Nine. On March 9, 1995, Siegel

filed a motion to withdraw his pleas of guilty as to all nine

counts pursuant to Rule 32(e) of the Federal Rules of Criminal

Procedure. In the motion and in the accompanying memorandum of

law, Siegel contended that the motion should be granted as to

Counts Four, Five, and Six because the district court failed to
 1

The government contends that Siegel failed to raise the

Rule 11(c)(1) issue in the district court as to Counts Four,

Five, and Six. We find this argument to be without merit, since

he did sufficiently raise it in his Rule 32(e) motion in the

district court. 

 2In addition to the arguments that we address in this

appeal, Siegel also contends that the district court abused its

discretion in denying his motion to replace his appointed trial

and appellate counsel who he alleges rendered ineffective

assistance of counsel. To the extent that Siegel has raised an

ineffective assistance of counsel claim in this appeal, we

decline to address the merits of such a claim, as the record has

not been sufficiently developed. See United States v. Harvey, 78

F.3d 501 (11th Cir.1996).

Siegel also challenges his sentence on the ground that

the district court improperly considered one of his prior

burglary convictions in calculating his criminal history

category pursuant to the Sentencing Guidelines. Moreover,

Siegel contends that the district court erred in computing

loss under U.S.S.G. § 2B3.1 from a robbery, charged as one

of several predicate RICO offenses in Count One of the

indictment, by utilizing the stolen jewelry's retail value,

as opposed to its wholesale replacement value. We need not

advise him of the penalties associated with such offenses.1

Further, he asserted that it should be granted as to Counts Seven,

Eight, and Nine because the district court failed to inform him

that the penalties for these counts were mandatory in nature. On

April 14, 1995, the district court conducted a hearing on Siegel's

motion to withdraw. The court denied Siegel's motion except as to

Count Nine. The government subsequently dismissed Count Nine.

The district court sentenced Siegel to concurrent terms of 240

months imprisonment on Counts One through Six, a consecutive term

of sixty months imprisonment on Count Seven, and a consecutive term

of 240 months imprisonment on Count Eight. This appeal followed.

III. THE ISSUE ON APPEAL AND STANDARD OF REVIEW

Siegel challenges his convictions and sentence on one basis

that we address.2

 Siegel argues that the district court violated
address these contentions, however, as we are vacating the

sentences on Counts One through Three in light of our

decision to reverse the district court's denial of Siegel's

Rule 32 motion. 

Rule 11(c)(1) by not informing him before he entered his pleas of

guilty of the maximum penalties that he faced on Counts Four, Five,

and Six, or the mandatory sentences that he faced on Counts Seven

and Eight. Because the district court's failure to abide by the

dictates of Rule 11(c)(1) substantially affected his rights, he

asserts that the court should have granted his motion to withdraw

his guilty pleas pursuant to Rule 32(e).

 Generally, the decision to permit the withdrawal of a guilty

plea is committed to the sound discretion of the district court.

United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988), cert.

denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989).

The court's denial of a motion to withdraw a guilty plea under Rule

32(e) is reversed only when it constitutes an abuse of discretion.

United States v. Medlock, 12 F.3d 185, 187 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). An

appellate court must review the record of the Rule 11 hearing as a

whole and affirm the district court if the record provides a basis

for the court's finding that the defendant understood what he was

admitting and that what he was admitting constituted the crimes

charged. United States v. Lopez, 907 F.2d 1096, 1099 (11th

Cir.1990).

IV. LEGAL ANALYSIS

 Rule 11 provides in relevant part:

Before 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 nature of the charge to which the plea is offered, the

mandatory minimum penalty provided by law, if any, and the

maximum possible penalty provided by law....

Fed.R.Crim.P. 11(c)(1).

Rule 11(c)(1) imposes upon a district court the obligation and

responsibility to conduct a searching inquiry into the

voluntariness of a defendant's guilty plea. United States v.

Stitzer, 785 F.2d 1506, 1513 (11th Cir.), cert. denied, 479 U.S.

823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986). Three core concerns

underlie this rule: (1) the guilty plea must be free from

coercion; (2) the defendant must understand the nature of the

charges; and (3) the defendant must know and understand the

consequences of his guilty plea. United States v. Hourihan, 936

F.2d 508, 511 n. 4 (11th Cir.1991); United States v. Bell, 776

F.2d 965, 968 (11th Cir.1985), cert. denied, 477 U.S. 904, 106

S.Ct. 3272, 91 L.Ed.2d 563 (1986); United States v. Dayton, 604

F.2d 931, 935 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct.

1080, 63 L.Ed.2d 320 (1980). If one of the core concerns is not

satisfied, then the plea of guilty is invalid. Stitzer, 785 F.2d

at 1513. Thus, "A court's failure to address any one of these

three core concerns requires automatic reversal." Id.; Bell, 776

F.2d at 968 (citing McCarthy v. United States, 394 U.S. 459, 89

S.Ct. 1166, 22 L.Ed.2d 418 (1969)); see also Buckles, 843 F.2d at

473.

 Any variances or deviations from the procedures mandated by

Rule 11 which do not affect a defendant's substantial rights,

however, constitute harmless error and should be disregarded.

Fed.R.Crim.P. 11(h). On appeal the harmless error analysis is
 3

Fed.R.Crim.P. 32(e) provides:

If a motion to withdraw a plea of guilty or nolo

contendere is made before sentence is imposed, the

court may permit the plea to be withdrawn if the

defendant shows any fair and just reason. At any later

time, a plea may be set aside only on direct appeal or

by motion under 28 U.S.C. § 2255. 

conducted on the basis of the record of the Rule 11 hearing.

Hourihan, 936 F.2d at 511; see also Fed.R.Crim.P. 11(h), Advisory

Committee's Note.

 While Rule 11(c) governs the validity of a plea of guilty,

Rule 32(e) provides that a plea of guilty may be withdrawn if the

defendant demonstrates that the interests of justice and fairness

so require.3 In determining if the defendant has met his burden,

a district court must consider whether: (1) close assistance of

counsel was available; (2) the plea was knowing and voluntary;

(3) judicial resources would be conserved; and (4) the government

would be prejudiced if the defendant were allowed to withdraw his

plea. Buckles, 843 F.2d at 472. A district court's failure to

advise a defendant, prior to the entry of his guilty plea, that

such a plea will result in the imposition of a mandatory minimum

sentence is a violation of Rule 11(c)(1), is not harmless error

under Rule 11(h) and requires that the defendant be permitted to

plead anew under Rule 32(e). Hourihan, 936 F.2d at 510-11; see

also United States v. Cobia, 41 F.3d 1473 (11th Cir.1995) (before

a defendant is sentenced he must be notified of mandatory minimum

and maximum possible penalties pursuant to Rule 11(c)(1)); United

States v. Goins, 51 F.3d 400 (4th Cir.1995) (district court's

failure to inform defendant of mandatory minimum sentence prior to
 4

18 U.S.C. § 1951(a) provides in relevant part:

Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or

attempts or conspires to do so ... shall be imprisoned

not more than twenty years.... 

 5

18 U.S.C. 924(c)(1) provides in pertinent part:

Whoever, during and in relation to any crime of

violence or drug trafficking crime ... uses or carries

a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking

crime, be sentenced to imprisonment for five years.... 

In the case of his second or subsequent conviction

under this subsection, such person shall be sentenced

to imprisonment for twenty years.... Notwithstanding

any other provision of law, ... the term of

imprisonment imposed under this subsection ... [shall

not] ... run concurrently with any other term of

imprisonment including that imposed for the crime of

violence or drug trafficking crime in which the firearm

was used or carried. 

accepting guilty plea is reversible error, absent evidence from the

Rule 11 proceeding that the defendant knew he was facing a

mandatory minimum sentence); United States v. Padilla, 23 F.3d

1220 (7th Cir.1994) (same).

 In this instance, the maximum penalties for the offenses

charged in Counts Four, Five, and Six were twenty years. 18 U.S.C.

§ 1951(a). 4 Count Seven carries a five-year mandatory minimum

sentence. 18 U.S.C. § 924(c)(1).5 Congress has provided that this

mandatory minimum sentence is to be served consecutively to the

penalties imposed on the violations charged in Counts One through

Six. Id. In addition, Count Eight carries a twenty-year mandatory

minimum sentence. Id. It, too, must be served consecutively to

all other sentences imposed by the court. Id.

It is undisputed that neither the district court nor the
 6

In Hourihan we assumed, arguendo, that the harmless error

analysis of Rule 11(h) is applicable in a situation where the

district court completely failed to address a "core" concern of

government informed Siegel during the Rule 11 proceedings of the

twenty-year maximum sentences that he could receive on Counts Four,

Five, and Six. Moreover, it is uncontroverted that neither the

court nor the government advised Siegel that he would be required

to serve a five-year mandatory minimum prison sentence if he pled

guilty to the offenses charged in Count Seven. Further, it is

undisputed that the district court failed to advise Siegel that if

he pled guilty to Count Eight he would be required to serve a

twenty-year mandatory minimum sentence, to be served consecutively

to the sentences imposed on Counts One through Seven.

 We hold that the district court's failure to personally

inform Siegel of the maximum sentences associated with Counts Four,

Five, and Six and its failure to personally advise him of the

mandatory nature of the penalties associated with the charges

contained in Counts Seven and Eight contravene the explicit and

unambiguous directives contained in Rule 11(c)(1). Because the

district court failed to abide by the unequivocal provisions of

this rule, we conclude that it failed to address Rule 11's core

requirement that the defendant be informed of and understand the

direct consequences of his plea. Contrary to the government's

contentions, the district court's failure to address this core

concern of Rule 11 was not harmless, as there is no evidence in the

record from the Rule 11 proceeding which demonstrates that Siegel

was aware of these maximum and mandatory minimum penalties on these

counts.6 Because we find that the district court violated Rule
Rule 11. 936 F.2d at 511 n. 4. Because we conclude that the

instant error is not harmless, we need not determine whether Rule

11(h)'s harmless error analysis is applicable in a situation

where the district court completely fails to address a "core"

concern of Rule 11. 

11(c)(1) and because such violations affected Siegel's substantial

rights, we reverse the district court's denial of Siegel's Rule 32

motion as to Counts Four through Eight, remand the matter to the

district court and direct it to grant his motion to withdraw his

pleas of guilty as to these counts. We also vacate the sentences

imposed by the district court on Counts One through Three, as it is

appropriate that an entire case be remanded for resentencing when

a sentencing scheme has been disrupted because it has incorporated

an illegal sentence. See United States v. Cochran, 883 F.2d 1012

(11th Cir.1989); United States v. Rosen, 764 F.2d 763 (11th

Cir.1985).

V. CONCLUSION

Because the district court failed properly to inform Siegel of

the maximum penalties associated with the charges contained in

Counts Four, Five, and Six and failed to advise him of the

mandatory nature of the penalties associated with the charges

contained in Counts Seven and Eight as required by the unequivocal

and unambiguous provisions found in Rule 11(c)(1), we conclude that

the district court abused its discretion in denying Siegel's motion

to withdraw his pleas of guilty as to Counts Four through Eight of

the indictment.

REVERSED in part; VACATED; and REMANDED for further

proceedings consistent with this opinion.