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

(December 29, 1992)

Before WISDOM, JOLLY AND DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

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 this failure did

violate Rule 11 and Vacate the conviction and sentence, and Remand

to permit him to replead.2 I. FACTS AND PROCEDURAL HISTORY

The defendant, 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 o n release status. A jury found the defendant guilty on

February 4, 1991, but Pierce 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 crosse s at nine different locations in

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

indicted Pierce and his co-defendants with conspiring to deprive or

interfere with the rights of minorities and with using fire and

explosives during the commission of a felony. On December 4, 1991,

Pierce pled guilty to these later charges. The district court held

a hearing in accordance with Rule 11 of the Federal Rules of

Criminal Procedure in which the defendant indicated that he

understood that the maximum total period of incarceration the court

could impose was 18 years.

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

Sentence Enhancement f o r committing offenses while on release3

status under U.S.S.G § 2J1.7 and 18 U.S.C. § 3417. On February 21,

1992, the district court sentenced Pierce to 60 m onths of

incarceration on the counts in the indictment. Pursuant to 18

U.S.C. § 3417, the district court also sentenced the defendant to

an additional 12 months for committing an offense while on release

status, giving the defendant a total sentence of 72 months.

II. DISCUSSION

Pierce contends that his guilty plea was involuntary because

the district court failed to advise him of the maximum sentence he

could re ceive in violation of Rule 11 of the Federal Rules of

Criminal Procedure. Rule 11 provides:

Before accepting the a plea of guilty or nolo contendere,

the court must address the defendant in ope n 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, 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

cir cumstances, and when applicable, that the court may

also order the defendant to make restitution to any

victim of the offense.

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

This ci rcuit has found that Rule 11 addresses three core

concerns: 1) whether the guilty plea was coerced, 2) whether the

defendant u nderstands the nature of the charges, 3) whether the

defendant understands the consequences of his plea. U nited States

v. Adams , 961 F.2d 505, 510 (5th Cir. 1992). The core concern at

issue in this case is whether Pierce knew the consequences of his4

plea. When the district court informed Pierce of the maximum

sentence he could receive, it failed to account for the mandatory

enhancement for committing an offense while on release provided by

18 U.S.C. § 3147. As a result, the district court told Pierce that

the maximum possible sentence he could receive was 18 years, when

it was actually 19 years. Pierce argues that this failure was a

violation of Rule 11.

Pierce furthe r argues that the failure was not harmless

because 18 U.S.C. § 3147 requires the district court to impose an

additional consecutive sentence. To support his argument, Pierce

looks to the comments of the corresponding guideline that provide

that "[a]n enhancement under 18 U.S.C. § 3147 may be imposed only

after sufficient notice to the defendant by the government or the

court." U.S.S.G. § 2J1.7. Pierce argues that under Rule 11 of the

Federal Rules of Criminal Procedure, the governme nt or the court

must give him the required notice when he enters his plea.

The government, on the other hand, contends that the

additional mandatory sentence that 18 U.S.C. § 3147 imposes is

merely a sentence enhancement provision that is not subject to the

requirements of Rule 11. The government relies on U nited States v.

Jackson , 891 F.2d 1151, 1153 (5th Cir. 1989); but in that case we

held only that 18 U.S.C. § 3147 was a sentence enhancement

provision and not a separate offense for which the government had

to indict the defendant. This court has also held that Rule 11's

requirement that the defendant be informed of statutory maximum and

minimum offenses applies to statutory sentencing ranges and not to5

guideline adjustments. U .S. v. Pearson

, 910 F.2d 221, 223 (5th

Cir. 1990). A defendant is entitled to notice of the applicability

of recidivist statutes that increase the statutory maximum penalty

prior to the entry of a guilty plea. Id

.

The gov ernment also argues that it satisfied Rule 11's

requirements by informing Pierce that he would be subject to an

enhanced sentence for any offense he committed while on release

before releasing him on bond. The government, however, cites no

authority to support this argument.

The government argues that, even if Rule 11 requires the court

to give notice of the enhanced maximum sentence, Pierce waived the

right to complain about the sentence. This argument is based on

the plea agreement that gives the government the right to inform

the sentencing judge of "all matters in aggravation and mitigation

relevant to the issue of sentencing." Based on the plea agreement,

the government argues that it merely informed the court of

aggravating circumstances. The government's argument is misplaced.

The plea agreement does not change the fact that the district court

did not inform Pierce of the maximum sentence he might receive.

Under the Federal Rules of Criminal Procedure, "[a]ny variance

from the procedures required by this rule which does not affect

substantial rights shall be disregarded." Fed. R. Crim. P. 11(h).

The government argues that, even if notice is required under Rule

11 prior to entry o f the plea, any failure to provide adequate

notice of the maximum sentence was harmless error here because the

sentence for the underlying offense together with the § 31476

enhancement yielded a sentence less that the statutory maximum for

the underlying offense, a maximum of which Pierce was apprised at

t he plea colloquy. This type of error has been held harmless in

cases involving failure to inform of supervised release, where the

supervised release term together with the sentence actually imposed

did not exceed what the defendant was informed the st atutory

maximum penalty for the offense would be. U nited States v.

Bachynsky

, 934 F.2d 1349, 1360 (5th Cir.) (en banc), cert. denied

,

112 S.Ct. 402 (1991). A recent opinion from this Court indicates,

however, that a failure to comply with Rule 11's directive to

inform of the statutory maximum and minimum sentence is a total

failu re on a core concern which is not subject to harmless error

analysis. United States v. Martirosian , 967 F.2d 1036, 1039 (5th

Cir. July 27, 1992).

Martirosian controls the decision in this ca se. In

Martirosian

, the court failed to inform the defendant of the

minimum mandatory sentence. Later, the court gave the defendant a

sentence that greatly exceeded the statutory minimum. We held that

the district court's failure to inform the defendant of the minimum

sentenced "was a complete failure to address a Rule 11 core

concern, mandating that the plea be set aside." Martirosian , 967

F.2d at 1038. The problem in the instant case is the reverse of

the problem we faced in Martirosian

. Yet, in this case as in

Martirosian

, the district court f ailed to fully inform the

defendant of the possible consequences of his plea. Failing to

advise Pierce of the maximum sentence was a complete failure to7 c:opin:92-4232.es address a Rul e 11 core concern, mandating that the plea be set

aside. We cannot, as the government urges, review this omission

for harmless error. Therefore, we Vacate the conviction and

sentence, and Remand to allow the defendant to replead.