UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4232

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WAYNE A. PIERCE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

( October 14, 1993 )

Before WISDOM, JOLLY and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

A member of the court having requested that the mandate for

the original panel opinion, dated December 29, 1992, be withheld,

the court now on its own motion withdraws such opinion and

substitutes this opinion in lieu thereof.

In this case we decide whether the district court's failure to

inform the defendant when he entered his guilty plea that the

maximum sentence he could receive would include an additional

mandatory sentence under 18 U.S.C. § 3147 violated Rule 11 of the

Federal Rules of Criminal Procedure. We hold that under our recent

en banc decision in United States v. Johnson

, No. 92-8057 (5th Cir.

Aug. 26, 1993), the court's less than perfect compliance with the2

rule is excused under the harmless error standard of Rule 11(h).

We therefore affirm Pierce's conviction and sentence.

I. BACKGROUND

Appellant, Wayne A. Pierce, is a former Grand Dragon of the Ku

Klux Klan in Louisiana. On November 19, 1990, the government

charged Pierce in a one-count indictment with felony possession of

a firearm in violation of 18 U.S.C. § 922(g). The same day, Pierce

was arraigned and released on bond. Before being released, Pierce

signed a written notice advising him that he would be subject to an

enhanced penalty if he committed another offense while on release.

A jury found Pierce guilty on February 4, 1991, but he remained on

bond status until May 7 when the court ordered him to begin serving

his sentence.

While on release, Pierce and other members of the Klan planned

to burn several crosses on the day Pierce began serving his firearm

possession sentence. The evening after Pierce entered prison, his

co-defendants burned crosses at nine different loc ations in

Louisiana. As a result of the cross-burning, the government

indicted Pierce and his co-defendants on the following charges:

Count 1: Con spiracy to interfere with federal rights in

violation of 18 U.S.C. § 241;

Count 2: Use of fire in the commission of a felony in

violation of 18 U.S.C. §844(h);

Count 3: Interference by force or threat of force with fair

housing rights in violation of 42 U.S.C. § 3631(a);3

Counts 4 and 5: Interference by force or threat of force with

public schooling in vio lation of 18 U.S.C. §

245(b)(2)(A); and

Count 6: Conspiracy to make a false declaration in violation

of 18 U.S.C. § 1623.

On December 4, 1991, Pierce entered into a plea agreement in

which he agreed to plead guilty to Counts One, Three, Four, Five

and Six. The district court held a Rule 11 hearing and informed

the defendant that the maximum total period of incarceration the

court could impose was 18 years. Sentencing was set for February

21, 1992.

On January 31, 1992, the government filed an Application for

Sentence Enhancement for committing offenses while on release

status under U.S.S.G § 2J1.7 and 18 U.S.C. § 3147. The effect of

these enhancement provi sions was to increase the maximum total

period of incarceration the court could impose from 18 years to 28

years. See 18 U.S.C. § 3147(1). Pierce was not made aware of this

enhancement either in the plea agreement or at the plea hearing.

On February 21, 1992, the district court sentenced Pierce to

60 months of incarceration on counts one and six of the indictment

and 12 m onths on counts three four and five, all to run

concurrently. Pursuant to 18 U.S.C. § 3147(1), the court sentenced

the defendant to an additional 12 months for committing an offense

while on re lease status, giving the defendant a total effective

sentence of 72 months.

Pierce appeals, claiming that his guilty plea was involuntary

because the district court understated the ma ximum sentence he

could recei ve in violation of Rule 11 of the Federal Rules of4

Criminal Proc edure. He argues that, as a result, he should be

allowed to plead anew.

II. DISCUSSION

The relevant portions of Rule 11 reads as follows:

(c) Advice to Defendant. Before accepting the a plea of

guilty or nolo contendere, the court must address the

defendant in open court and inform the defendant of , and

determine that the defendant understands, the following:

(1) the nature of the charg e to which the plea is

offered, the mandatory minimum penalty provided by law,

if any, and the maximum possible penalty provided by law,

including the effect of any special parole or supervised

release term, the fact that the court is required to

consider any applicable sentencing guidelines under some

circumstances, and when applicable, that the co urt may

also order the defendant to make restitution to any

victim of the offense; . . .

. . .

(h) Harmless Error. Any variance from the procedures

required by this rule which does not affect substantial rights

shall be disregarded.

Prior to our en banc decision in Johnson

, this court employed

a two step analysis in determining whether a dis trict court's

failure to admonish a defendant in accordance with Rule 11

warranted an automatic reversal. We first determined whether the

fai lure affected a "core concern" under Rule 11, and if so, we

classified the district court's failure as either total or partial.

Thus, if the district court totally failed to address a core

concern under Rule 11, the error warranted automatic reversal.

Our en banc decision in Johnson has "chucked" that two step

inquiry and now applies a harmless error analysis across the board.

Johnson

, slip op. at 6422. The inquiry now is: (1) did the

sentencing court vary from the procedures required by Rule 11, and1 We note that the district court would not have found itself

in this position were it not for the conduct of the prosecution in

waiting to request an enhancement until after the court had held

Pierce's Rule 11 hearing.

5 (2) if so, did such variance affect substantial rights of the

defendant? Id

. at 6418. To determine whether the error affected

substantial rights, we focus on whether the defendant's knowledge

and comprehension of the full and cor rect information would have

been likely to affect the defendant's willingness to plead guilty.

Id . at 6423.

Applying this inquiry to the facts here, we conclude that the

court varied from the procedures required by Rule 11 when it failed

to advise Pierce of the maximum penalty to whic h he was subject

after application of the enhancement provisions. After the

government re quested enhancement, the court should have held

anoth er hearing and informed Pierce of the requested enhancement

and its effect. Failing to do so was error. 1

Having found the error, the next question is whether it was

harmless. To make this determination, we "'examine the facts and

circumstances of the

. . . case to see if the district court's

flawed compliance with

. . . Rule 11

. . . may reasonably be viewed

as having been a material factor affecting [Pierce]'s decision to

p lead guilty.'" Id

. (quoting Fed. R. Crim. P. 11 (advis ory

committee notes to 1983 amendment)). We conclude that the court's

failure to inform Pierce of the enhancement cannot be so viewed.2 It is noteworthy tha t the advisory committee notes to the

1983 amendment to Rule 11 adopting section (h) cite United States

v. Peters

, No. 77-1700 (4th Cir., Dec. 22, 1978), as being

"illustrative" of cases to which harmless error appli es. In

Peters

, the defendant was advised that he might receive a sentence

of fifteen years plus a special parole term of at least three

years; the defendant was not advised of the maximum number of years

of the mandatory special parole term. At sentencing, the defendant

received a sentence of fifteen years plus a special parole term of

three years. The defendant appealed, arguing that the court had

violated Rule 11 by failing to advise him of the maximum number of

years that might be imposed as a special parole term. The Fourth

Circuit affirmed the se ntence, concluding that any error was

harmless because his actual sentence did not exceed that indicated

in the district court's warnings.

6 These facts present a prototypical case of harmless error. 2

H ere, the sentencing court informed Pierce during the Rule 11

colloquy that his maximum possible prison time was 18 years. Based

on this understanding of a "worst case scenario," Pierce made the

decision to plead guilty. And rather than having this scenario

realized, Pierce was actually sentenced to si x years, a sentence

well below the 18 year period of which the court had made him

aware. Clearly Pierce has not been harmed.

Moreover, the fact that his true "worst c ase scenario" was

actually worse than he was informed would not have reasonably

caused Pierce to doubt the wisdomof his plea. To the contrary,

logic and reason would weigh this factor in favor of his decision

to plead guilty: if Pierce was willing to plead guilty when facing

what he believed was an 18 year maximum, would he not have been

just as willing if had he known that the maximum was 28 years?

III. CONCLUSION

Thus, we hold that "the nature and extent of the deviation

from Rule 11 was such that it could not have had any impact on the7 c:br:opin:92-4232p.3cf defendant's decision to plead or the fairness in now holding him to

his plea." Fed. R. Crim. P. 1 1 (advisory committee notes to 1983

amendment). Having so held, Pierce's conviction and sentence are

AFFIRMED.

E. GRADY JOLLY, Circuit Judge dissenting:

I respectfully dissent because the majority's overgeneralized

analysis fails completely to focus on what Supreme Court precedent

clearly dictates is the central issue involved in this case: the

voluntary nature of Pierce's guilty plea. S ee Brady v. United

States

, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747

(1970). The majority opinion holds the district court's Rule 11

error to be "harmless" because: (1) Pierce ultimately received less

than the 18-year maximum sentence that the district court informed

him of at the Rule 11 hearing; and (2) the 20-year increase in

Pierce's potential maximum sentence caused by the post-hoc 18

U.S.C. § 3147 enhancement would not c onstitute a material factor

affecting his decision to plead guilty. With all due respect, the

majority's analysis could not be more flawed when it effectively

says that a defendant can enter, as a matter of law, a voluntary,

knowing, and intelligent plea of guilty when the actual peril faced

by the defendant was more than twice as great as he was told by the

district court at the time he entered his plea. The effect of the3 United States v. Johnson

, 1 F.3d 296, 302 (5th Cir. 1993),

provides that our harmless error analysis must focus on:

[W]hether [the defendant's] knowledge and comprehension

of the full and correct information would have been

likely to affect the defendant's will ingness to plead

guilty.

This language correctly requires focus on the voluntary nature of

the defendant's decision at the time he enters his plea, i.e., on

the information the defendant pos sessed when he pled guilty.

Curiously, Johnson , at 298, further provides, that in determining

the voluntariness of a plea we may consider the "sentence actually

imposed" on the defendant although the sentence is always imposed

sometime after the entry of the plea. Only in the rare instance in

which the defendant knows of the actual sentence to be imposed

prior to making his plea will the actual sentence inform the court

about the defendant's knowledge when he entered the plea

. J ohnson

then states t hat we should consider the ultimate sentence to

determine the validity of the plea when it is:

[ T]emporally relevant to the voluntary and uncoerced

nature of the defendant's guilty pl ea, and to his

knowledge and understanding of the nature of the charges

against him and the consequences of his plea.

Id. (emphasis added).

With all due respect, I find this observation, especially the words

"temporally relevant" somewhat confusing, unless the words refer

only to the time period before the defendant enters his plea. The

act ual sentence imposed, perhaps, could be relevant, but not

temporally so, to t he reasonableness of a projected guidelines

range that the dist rict court informed the defendant of at the Rule

11 hearing. Here, however, the district court did not inform

Pierce of any projected guideline s range and thus, the actual

sentence imposed cannot be relevant in any sense to the

voluntariness of Pierce's plea en tered some months prior to the

district court's imposition of the actual sentence. majority's holding is that when a defendant is sentenced to a term

less than the maximum sentence of which he is advised, the failure

to inform the defendant of the actual maximum sentence he faces is

always harmless error. I do not believe that is the law, nor do I

believe that is what Johnson holds. 3 Accordingly, I would remand

so that Pierce could receive another Rule 11 hearing in which the-9-

dis trict court would inform him of the actual statutory maximum

sentence of 38 years. This would enable pierce to enter a

voluntary plea within the plain meaning of Rule 11 and the

unambiguous mandate of Supreme Court precedent.