*

Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of

Pennsylvania, sitting by designation. 

 1Pursuant to a plea agreement, appellants pled guilty to conspiracy to possess with intent to

distribute marijuana in violation of 21 U.S.C. § 846 (Count One), using and carrying a handgun

during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) and 18

U.S.C. § 2 (Count Three), and using a handgun to assault a D.E.A. Agent in violation of 18

U.S.C. § 111 and 18 U.S.C. § 2 (Count Four). Appellants challenge only their convictions

entered on their guilty pleas to Count Three. 

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-4854, 94-5308.

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven DePACE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Carlton Albert DePACE, Defendant-Appellant.

Aug. 25, 1997.

Appeals from the United States District Court for the Southern District of Florida. (No. 93-6189-CRRoettger), Norman C. Roettger, Judge.

Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*

, Senior District Judge.

O'NEILL, Senior District Judge:

Appellants, Steven and Carlton DePace, who are brothers, appeal from judgments of

conviction entered on their guilty pleas. The DePaces challenge two aspects of their guilty pleas to

Count Three using and carrying a handgun during and in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2.1 They first contend that their pleas to Count

Three, were not knowing and intelligent because the district court failed to inform them of the nature

of the charge as required by Fed.R.Crim.P. 11(c). Second, they argue that the district court's inquiry

into the factual basis for the plea to Count Three was insufficient to comply with Fed.R.Crim.P.

11(f). Appellants also assert and the government concedes that the district court's upward
 2

Appellants also contend that 18 U.S.C. § 924(c) is an unconstitutional effort to regulate

intrastate, non-economic activity. We agree with the Courts of Appeals that have rejected this

argument. See United States v. Brown, 72 F.3d 96, 96 (8th Cir.1995), cert. denied, --- U.S. ----,

116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996), United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th

Cir.1995). 

2

sentencing departure without notice violates due process and the Supreme Court's decision in Burns

v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991).2 For the

reasons that follow we will affirm the judgments of conviction but will vacate the sentences and

remand for resentencing.

I.

This appeal arises out of an attempt by the DePace brothers and their co-defendants to steal

a large shipment of marijuana from undercover D.E.A. Agents from whom the defendants had

arranged to purchase the marijuana. In October, 1993, defendants Steven DePace and Frederick

Anthony Miccio met with undercover D.E.A. Agents Griffith and Bennet who were posing as

marijuana suppliers. On October 20, 1993 Agent Bennet drove 535 pounds of marijuana to meet

Miccio, who inspected the marijuana and told Bennet to drive the marijuana to a hotel where Bennet

would receive payment.

Miccio accompanied Agent Bennet to a hotel room and knocked on the door. Steven DePace

answered the door and allowed Agent Bennet and Miccio to enter. Another co-defendant,

Dellamonica, was inside the hotel room masquerading as a D.E.A. Agent and brandishing a D.E.A.

Task Force Badge and a handgun. He approached Agent Bennet and said, "We're cops. You're

under arrest." Yet another co-defendant, Shisoff, then came forward wearing a stocking mask and

carrying a handgun.

Defendants Dellamonica and Shisoff forced Agent Bennet onto a bed and tied his hands and

feet with duct tape. As they were attempting to tape his mouth shut, other agents broke into the

room and arrested Steven DePace, Dellamonica and Shisoff. The agents recovered three loaded

firearms in the room.
3

Agents arrested Carlton DePace sitting in a van in the hotel parking lot after he admitted that

he was acting as a lookout for the group. He later confessed that his role was to block the parking

lot if anything went awry with the plan.

II.

 On this direct appeal, Steven and Carlton DePace contend that the district court failed to

comply with Fed.R.Crim.P. 11(c)(1) when it accepted their guilty pleas. Rule 11(c) provides:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court

must address the defendant personally in open court and inform the defendant of, and

determine that the defendant understands the following:

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

An appellate court must review the record of the Rule 11 hearing as a whole, and the "district court's

implicit factual finding that the requirements of Rule 11 were satisfied when it accepted the

defendants' pleas is subject to the clearly erroneous standard of review." United States v. Lopez, 907

F.2d 1096, 1099 (11th Cir.1990); accord United States v. Siegel, 102 F.3d 477, 480 (11th Cir.1996).

 "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." Siegel, 102 F.3d at 481 (citing

United States v. Stitzer, 785 F.2d 1506, 1513 (11th Cir.1986)). Three core concerns underlie this

rule: "(1) the guilty plea must be free of coercion; (2) the defendant must understand the nature of

the charges; and (3) the defendant must know the consequences of the plea." United States v.

Hourihan, 936 F.2d 508, 511 n. 4 (11th Cir.1991). A "court's failure to address any one of these

three core concerns requires automatic reversal." United States v. Bell, 776 F.2d 965, 968 (11th

Cir.1985).

Appellants argue that the district court did not ensure that they understood the nature of the

charge of using and carrying a handgun during and in relation to a drug trafficking crime in violation

of 18 U.S.C. § 924(c). Appellants never actually possessed handguns but were charged with aiding

and abetting their co-defendants who had used handguns in the attempted theft of the marijuana from
 3

The aiding and abetting theory is not an essential element of the offense and it is not

necessary to make reference to it in the indictment. United States v. Martin, 747 F.2d 1404,

1406 (11th Cir.1984). 

4

the undercover D.E.A. Agent. The government counters that the colloquy satisfied Rule 11 and

alternatively that any Rule 11 violation was harmless.

A review of the Rule 11 colloquy as a whole reveals that the district court did inquire into

the DePaces' understanding of the charges to which they were pleading guilty. The district court

first inquired into the Depaces' educational background. They responded as follows:

MR. C. DePACE: I also finished high school and have about forty college credits.

MR. S. DePACE: I graduated High School, and I have college credits and technical school.

This inquiry established that the DePaces were intelligent people fully capable of understanding the

nature of the charges against them. See Bell, 776 F.2d at 969 (holding similar inquiry established

that defendant was sufficiently intelligent to understand charges).

The district court then confirmed that the DePaces had received a copy of the indictment, had

discussed it thoroughly with counsel, and were satisfied with counsel. The district court then read

the indictment in full. Count Three, the weapons charge at issue, read as follows:

On or about October 20th, 1993 ... the defendants ... did knowingly use and carry a firearm,

that is a handgun during and in relation to a drug trafficking crime.3

The district court also enumerated and confirmed that the DePaces understood the essential elements

of the offenses and had read the Plea Agreement and discussed it thoroughly with counsel before

signing it. Neither the indictment, the essential elements nor Plea Agreement, however, explained

the aiding and abetting theory that linked the DePaces to the firearms carried and used by their

co-defendants.

When asked whether they had any questions about the proceedings both DePaces responded

that they did not. They also agreed with the government's factual proffer and acknowledged that

they assisted in the attempt to steal the marijuana, knew the substance was marijuana and expected
 4

This Court adopted as precedent decisions of the former Court of Appeals for the Fifth

Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir.1981). 

 5

For an example of a complex charge see United States v. Byrd, 804 F.2d 1204, 1206-07 (11th

Cir.1986) (affirming conviction where defendant pled guilty to a Travel Act charge, 18 U.S.C. §

952, and district court's colloquy closely paralleled pattern jury instruction). See also Lopez, 907

5

to gain financially from the transaction. With that, the district court accepted the DePace brothers'

guilty pleas.

The district court deliberately verified that the DePaces understood in general terms the

nature of the charges against them. However, the district court did not explicitly discuss the aiding

and abetting theory of liability that linked the DePaces to the weapons used and carried by their

co-conspirators because in this case the aiding and abetting theory is not an essential element of the

offense requiring inclusion in the indictment.

 No simple or mechanical rule determines whether the district court complied with Rule 11's

mandate to satisfy itself that the DePaces understood the nature of the charges against them. Bell,

776 F.2d at 968; see also McCarthy v. United States, 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 1171

n. 20 (1969); United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir.1979) (en banc).4

 Rather, the

inquiry varies from case to case depending on "the relative difficulty of comprehension of the

charges and of the defendant's sophistication and intelligence." Bell, 776 F.2d at 968 (quoting

Dayton, 604 F.2d at 938). We have described the spectrum of complexity of charges and the

concomitant degree of required explication as follows:

For simple charges ... a reading of the indictment, followed by an opportunity given the

defendant to ask questions about it, will usually suffice. Charges of a more complex nature,

incorporating esoteric terms or concepts unfamiliar to the lay mind, may require more

explication. In the cases of extreme complexity, an explanation of the elements of the

offense like that given the jury in its instructions may be required.

Dayton, 604 F.2d at 937-38.

The crime of using and carrying a handgun during and in relation to drug trafficking is

ordinarily a relatively simple charge easily understood by a person of the DePaces' relative

intelligence and sophistication.5

 See United States v. Sanchez, 650 F.2d 745, 746-48 (5th Cir.1981)
F.2d at 1099-1100 (affirming conviction of RICO narcotics defendants, who were former police

officers better acquainted with the violations than the average person, despite failure of district

court to recite all predicate racketeering acts and to explain in detail the relationship between the

RICO offense and predicate acts). 

 6

Lowery is distinguishable because the defendant there expressed a lack of understanding of

how he was guilty for carrying and using of a firearm without actually possessing the firearm. 

6

(affirming defendant's conviction where twenty-five year old migrant worker pled guilty to

possession of marijuana with intent to distribute; prosecutor read the indictment and district court

asked defendant if he had any questions). We must decide whether the aiding and abetting theory

of liability complicates the nature of the charge to a degree that would impair one or both of the

DePace brothers' understanding of the nature of the charge to which they pled guilty.

 The degree of complexity added by the aiding and abetting theory is minimal in Steven's

case. Steven opened the hotel room door for the D.E.A. Agent Bennet and watched as two of his

co-defendants, brandishing weapons, assaulted the agent. Steven was arrested, along with his

co-defendants, in a hotel room which contained three loaded weapons. A lay person of Steven's

intelligence would likely understand his liability for the use and carrying of firearms under those

circumstances. Therefore, we hold that, even absent an explicit discussion of aiding and abetting,

the district court adequately informed Steven of the nature of the charges. Under these

circumstances, the district court's implicit factual finding that Steven understood the nature of the

charges was not clearly erroneous. See Lopez, 907 F.2d at 1099.

 From a lay person's perspective, Carlton's criminal liability for carrying and using the

handguns is more difficult to comprehend. Carlton was outside in a van when the assault occurred

and the weapons were used, and there is no evidence linking him directly to the handguns. The law

of aiding and abetting would impose liability for Carlton's conduct in assisting the scheme in which

weapons were used and a lay person might not understand this legal principle without an

explanation. See United States v. Lowery, 60 F.3d 1199, 1205 (6th Cir.1995) ("It is not difficult to

understand that ... a lay person, might not understand why [the defendant] would be guilty of aiding

and abetting the crime of "using and carrying' a firearm [when he] did not possess the gun at all."),6
Neither of the DePaces ever expressed such a lack of understanding of the charges. 

 7

We note that the Sixth and Ninth Circuit Courts of Appeals apply a de novo standard in

reviewing a district court's compliance with Rule 11. Lowery, 60 F.3d at 1204-05; Smith, 60

F.3d at 596 n. 1. We apply a clearly erroneous standard of review. Lopez, 907 F.2d at 1099. 

7

United States v. Smith, 60 F.3d 595, 597 (9th Cir.1995) (stating that defendant must understand not

only the facts, but also the law in relation to the facts).7

Despite this added complexity in the nature of the charges against Carlton, we hold that the

district court's implicit factual finding that Carlton understood the nature of the charges was not

clearly erroneous. The district court first determined that Carlton graduated from high school and

had earned approximately forty college credits. The court then read the indictment, listed the

essential elements and confirmed that Carlton had reviewed the plea agreement and the indictment

with counsel. Carlton affirmed that he agreed with the factual proffer and admitted that he had

assisted in the attempted theft of the marijuana, knew that he and his co-conspirators would be

procuring marijuana and expected to benefit financial from the transaction. The district court asked

whether Carlton had any questions about the proceedings and Carlton confirmed that he did not.

Finally, Carlton, who was represented by counsel, never objected or expressed any confusion

throughout the proceeding.

The district court, unlike this court, observed Carlton's interaction with counsel and his

demeanor as he confirmed his agreement to the plea. See Byrd, 804 F.2d at 1207. There is nothing

in the record to contradict the district court's conclusion that Carlton adequately comprehended the

basis for his plea.

While a brief explanation of the aiding and abetting theory would have been preferable, we

cannot find that its omission undermined Carlton's understanding to a degree that would invalidate

the district court's acceptance of the guilty plea. Upon review of the colloquy as a whole, we

conclude that the district court's implicit factual finding that Carlton understood the nature of the

charges was not clearly erroneous.

III.
 8

Fed.R.Crim.P. 11(f) provides that the court "shall satisfy [itself] that there is a factual basis

for the plea." The purpose of Rule 11(f) is to "protect a defendant who mistakenly believes that

his conduct constitutes the criminal offense to which he is pleading." Lopez, 907 F.2d at 1100. 

8

 Appellants also argue that the district court failed to satisfy itself that a factual basis existed

for the DePace brothers' guilty plea.8 The DePaces assert that the government's factual proffer fails

to establish their guilt for aiding and abetting the use and carrying of the handguns in connection

with a drug trafficking offense. Specifically, the DePaces contend that there is no evidence that they

procured, possessed or helped anyone else procure or possess a weapon. Their argument is without

merit.

 A district court "accepting a plea must determine whether "the conduct which the defendant

admits constitutes the offense ... to which the defendant has pleaded guilty.' " Lopez, 907 F.2d at

1100 (quoting McCarthy 494 U.S. at 467, 89 S.Ct. at 1171). The standard for evaluating the

DePaces' argument is "whether the trial court was presented with evidence from which it could

reasonably find that the defendant was guilty." Lopez, 907 F.2d at 1100 (citations omitted).

 To prove guilt by aiding and abetting the government must show that the "substantive

offense was committed by someone, [that] there was an act by the defendant[s] which contributed

to and furthered the offense, and [that] the defendant[s] intended to aid in its commission." United

States v. Walser, 3 F.3d 380, 387 (11th Cir.1993) (citing United States v. Jones, 913 F.2d 1552, 1558

(11th Cir.1990)). The DePaces contend that the factual proffer did not establish an act by either of

the DePaces which contributed to or furthered the offense.

The factual proffer, however, establishes acts by the DePaces which contributed or furthered

the offense. Both brothers were at the scene of the crime and their presence and the division of labor

among the co-defendants facilitated the scheme whereby their accomplices, brandishing handguns,

ambushed the undercover D.E.A. Agent during the purported drug transaction. This evidence is
 9

The Supreme Court recently held that "use" of a firearm during and in relation to a drug

trafficking offense requires active employment of the firearm. Bailey v. U.S., --- U.S. ----, ----,

116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). The Supreme Court illustrations of what it

considered active employment included "brandishing" and "displaying." Id. at ----, 116 S.Ct. at

508. The conduct of the DePaces' co-defendants fits squarely into the Supreme Court's

illustrations and therefore Bailey does not support an argument that the DePaces' co-defendants

were not guilty of violating § 924(c). Also, the Supreme Court did not limit the aiding and

abetting theory of criminal liability in Bailey; it merely defined the term use. Therefore Bailey

provides no additional basis for appellants' argument that the district court failed to satisfy itself

that a factual basis existed for their guilty pleas. 

9

sufficient to establish the requisite acts which contributed to and furthered the offense.9 Thus the

district court properly accepted the factual proffer as sufficient to support the DePaces' guilty pleas.

IV.

 Appellants argue and appellee concedes that the district court's upward sentencing departure

violates the Due Process Clause and the Supreme Court's decision in Burns v. United States, 501

U.S. 129, 138-39, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991), because it took place without

notice. We agree.

V.

For the foregoing reasons we AFFIRM the convictions of Steven and Carlton DePace,

VACATE their sentences, and REMAND for resentencing.