*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0045P (6th Cir.)

File Name: 04a0045p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REGINALD CHARLES ROSE,

III,

Defendant-Appellant.

X

-

-

-

-

>

,

-

-

-

-

N

No. 02-5163

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 01-00061—Curtis L. Collier, District Judge.

Submitted: September 9, 2003

Decided and Filed: February 11, 2004 

Before: MOORE and GILMAN, Circuit Judges; MILLS,

District Judge.*

2 United States v. Rose No. 02-5163

_________________

COUNSEL

ON BRIEF: Anthony Martinez, FEDERAL DEFENDER

SERVICES OF EASTERN TENNESSEE, INC.,

Chattanooga, Tennessee, for Appellant. Reginald Rose, III,

Montgomery, Alabama, pro se.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The

Defendant-Appellant, Reginald Charles Rose, III (“Rose”),

appeals his convictions and sentence. Rose was convicted of

conspiring to distribute fifty grams or more of

methamphetamine mixture, in violation of 21 U.S.C. §§ 846

and 841(b)(1)(B), and of knowingly and intentionally

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro

se brief, Rose raises several claims of error in the district

court’s acceptance of his guilty pleas. Most of these errors

arise from discrepancies between the descriptions of the

charges in Counts One and Three as stated in the Superseding

Indictment and as stated in his written plea agreement.

Rose’s court-appointed counsel also filed an appellate brief

and a motion to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967), stating that he has found no meritorious

grounds for appeal but nonetheless raising two possible

claims of error in the calculation of Rose’s sentence.

For the reasons set forth below, we VACATE Rose’s

conviction and sentence as to Count One and REMAND for

proceedings consistent with this opinion.
No. 02-5163 United States v. Rose 3

I. JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231 because Rose was charged with offenses against the

laws of the United States. This court has jurisdiction over the

appeal under 28 U.S.C. § 1291 because Rose is appealing a

conviction imposed by the district court.

II. BACKGROUND

A. Factual Background

The facts of this case are not in dispute. “In March 2001,

agents with the Tennessee Bureau of Investigation (“TBI”)

received information from a confidential informant (“CI”)

that” Rose could deliver methamphetamine. Presentence

Report (“PSR”) at 5. The CI arranged to purchase one pound

of methamphetamine from Rose and to have it delivered to a

residence in Meigs County, Tennessee. On March 19, 2001,

the CI and an undercover TBI agent met Rose at that

residence; additional TBI agents monitored the transaction.

Ralph Vasquez (“Vasquez”), a co-defendant, accompanied

Rose to the residence. Previously, in Dalton, Georgia, Eric

Estrada (“Estrada”) had “fronted” the methamphetamine that

Rose was to deliver to the CI. Estrada had sent his associate,

Vasquez, along with Rose on the March 19, 2001 transaction

to ensure that Estrada received payment.

At the residence in Meigs County, Rose and Vasquez

negotiated to sell an additional two pounds of

methamphetamine to the CI. Rose and Vasquez told the CI

that they would deliver this additional methamphetamine for

$20,000 at a later date. Rose and Vasquez then delivered the

original one pound of methamphetamine in exchange for

$11,500. Immediately thereafter, TBI agents arrested Rose

and Vasquez. When the TBI agents searched the car that

Rose and Vasquez used to travel to Meigs County, they found

a loaded Colt .45 in plain view.

4 United States v. Rose No. 02-5163

B. Procedural Background

On April 11, 2001, Rose, Vasquez, and Estrada were

charged in a three-count Indictment. On May 22, 2001, a

Superseding Indictment named an additional three coconspirators. In Count One of the Superseding Indictment,

Rose and all five co-conspirators were charged with

conspiring to distribute five hundred grams or more of a

mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A). In Count Two, Rose, Vasquez,

and Estrada were charged with distributing fifty grams or

more of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. In Count Three,

Rose, Vasquez, and Estrada were charged with knowingly

and intentionally carrying a firearm during and in relation to

the drug trafficking offenses set out in Counts One and Two,

in violation of 18 U.S.C. §§ 2 and 924(c).

On September 6, 2001, Rose pleaded guilty to Counts One

and Three pursuant to a written plea agreement. A sentencing

hearing was held on January 4, 2002, and a judgment was

entered that same day, dismissing Count Two on the

government’s motion. There are discrepancies between the

descriptions of the charges in Counts One and Three as stated

in the Superseding Indictment and as stated in the plea

agreement.

On January 10, 2002, Rose filed a timely notice of appeal

from the district court’s judgment. On July 19, 2002, Rose’s

court-appointed counsel, Anthony Martinez, filed an Anders

brief and a motion to withdraw. In his Anders brief, Rose’s

counsel stated that after reviewing the entire record, he was of

the opinion that there were no meritorious grounds for an

appeal. Nonetheless, in his Anders brief, Rose’s counsel

raised the issues of whether the district court erred by

including the additional two pounds of methamphetamine

when determining Rose’s offense level and whether the
No. 02-5163 United States v. Rose 5

1

The first issue, regarding the district court’s inclusion of the

additional two pounds of methamphetamine when determining Rose’s

base offense level, is analyzed more fully in United States v. Vasquez, 352

F.3d 1067 (6th Cir. 2003), affirming the sentence of Rose’s co-defendant,

Vasquez.

The second issue, regarding the district court’s grant of a three-level

downward departure for the government’s 5K1.1 motion, is meritless and

easily disposed of because we have held that a defendant cannot appeal

the degree of a district court’s downward departure for substantial

cooperation, so long as the district court remained within the sentencing

guidelines. United States v. Gregory, 932 F.2d 1167, 1169 (6th Cir

1991).

2

It is not clear whether Rose raises these as two distinct claims of

error, but we will treat them as such. On page four of his brief, Rose

states, “The Court never had jurisdiction to sentence as the charges

presented to the Court were different than the charges brought in the

indictment.” Appellant’s Br. at 4. Then, on page five of his brief, Rose

states, “In order to be able to make an informed decision on the plea

agreement, Rose would have had to know that he was not pleading guilty

to the charges in the indictment, rendering the plea moot.” Id.

3

Again, it is not clear whether Rose is complaining about the

sufficiency of the evidence to support his conviction, or about the

sufficiency of the Superseding Indictment. Appellant’s Br. at 4. On page

four of his brief, Rose claims the “charge can not stand on its merit,”

which seems to allege that the evidence was insufficient to support his

conviction. Appellant’s Br. at 4. On that same page, Rose also claims the

district court erred as to the extent of the downward departure

in Rose’s sentence on the government’s 5K1.1 motion.1

On August 29, 2002, Rose filed a pro se response to his

counsel’s Anders brief. In his response, Rose raises the

following three claims of error: (1) that the district court

conducted Rose’s plea hearing in a manner that violated

Federal Rule of Criminal Procedure 11 (“Rule 11") and that

the district court did not have jurisdiction to accept a plea to

an offense that was not charged in the Superseding

Indictment;2 (2) that there was insufficient evidence to

support Rose’s conviction for carrying a firearm during and

in relation to a drug trafficking offense;3 and (3) the

6 United States v. Rose No. 02-5163

charge was not “proper at indictment,” which seems to allege that the

Superseding Indictment was insufficient. Id.

additional two pounds of methamphetamine that Rose and

Vasquez agreed to deliver should not have been considered in

calculating Rose’s sentence. The government has not filed an

appellate brief in this case.

The extensive and rather complicated procedural history

will be set out in more detail below as it pertains to each of

the issues.

III. ANALYSIS

A. District Court’s Compliance With Rule 11 for Count

One

1. Factual Background

The description of the charge in Count One in the plea

agreement differs from that in the Superseding Indictment. In

the Superseding Indictment, Count One states:

REGINALD CHARLES ROSE, III, and others unknown

to the Grand Jury, did combine, conspire, confederate,

and agree to knowingly, intentionally, and without

authority violate Title 21, United States Code, Sections

841(a)(1) and 841(b)(1)(A), that is, to distribute 500

grams or more of a mixture or substance containing a

detectable amount of methamphetamine, a Schedule II

controlled substance, in violation of Title 21, United

States Code, Section 846.

R. at 35 (Superseding Indictment) (emphases added). In the

plea agreement, paragraph one states:

The defendant [Rose] agrees to plead guilty to the

following counts of a Superseding Indictment filed

against him in the above-styled case:
No. 02-5163 United States v. Rose 7

Count One charging him with a violation of Title 21,

United States Code, Section 846, i.e., attempt to

violate Title 21, United States Code, Section

841(a)(1) and 841(b)(1)(B), that is, to knowingly,

intentionally and without authority distribute fifty

(50) grams or more of a mixture or substance

containing a detectable amount of

methamphetamine, a Schedule II controlled

substance.

R. at 81 (Plea Agreement) (emphases added). The description

of the charge in Count One in the plea agreement differs from

that in the Superseding Indictment in three respects: (1) it

changes the charge from “conspiring to distribute” to

“attempting to distribute”; (2) it changes the statutory

provision from 21 U.S.C. § 841(b)(1)(A) to 21 U.S.C.

§ 841(b)(1)(B); and (3) to correspond with the changed

statutory provision, it changes the drug quantity contained in

the description of the charge from “five hundred grams or

more” to “fifty grams or more.”

At the plea hearing, the district court read the charge in

Count One as it is stated in the Superseding Indictment. In

response, Rose pleaded guilty. After Rose pleaded guilty,

Vasquez’s attorney, Mr. Brooks, pointed out that Vasquez’s

plea agreement changed the charge from a violation of

21 U.S.C. § 841(b)(1)(A), conspiring to distribute five

hundred grams or more of methamphetamine mixture, to a

violation of 21 U.S.C. § 841(b)(1)(B), the penalty for fifty

grams or more. The Assistant U.S. Attorney, Mr. Laymon,

also acknowledged the change. Rose joined in Vasquez’s

objection regarding the change. The discussion went as

follows:

MR. BROOKS [counsel for Vasquez]: Your Honor, our

plea agreement says 50 grams, rather than 500 grams,

which was the original indictment.

THE COURT: Mr. Laymon?

8 United States v. Rose No. 02-5163

MR. LAYMON [government counsel]: Judge, as to both

Mr. Rose and Mr. Vasquez, the first defendant and the

third defendant, they’re pleading guilty pursuant to their

plea agreements, which stipulate a plea to what would be

a lesser included offense, technically, I suppose, but it

would be (b)(1)(B) as opposed to (b)(1)(A). . . . [Rose

and Vasquez] would be pleading guilty to 50 grams or

more, which is the (b)(1)(B) provision.

THE COURT: So, Mr. Brooks, your client is pleading

guilty to the charge insofar as it alleges — is it 50 grams

or less, and not guilty as the charge alleges over 50

grams? Is that correct?

MR. BROOKS: Your Honor, it’s 50 grams or more but

not over 500 grams.

THE COURT: Okay. Fifty grams or more —

MR. BROOKS: That’s correct.

THE COURT: — but not over 500 grams?

MR. BROOKS: That’s correct.

THE COURT: He’s pleading not guilty to any amount

of 500 or more grams?

MR. BROOKS: That’s correct, Your Honor.

MR. MARTINEZ: Judge, on behalf of Mr. Rose, also,

Your Honor.

THE COURT: Okay.

Plea Hr’g Tr. at 14-15. Thus, at the plea hearing, the parties

and the district court discussed the discrepancies between the

Superseding Indictment and the plea agreement regarding the

statutory provisions and the drug quantities. They did not,
No. 02-5163 United States v. Rose 9

however, discuss the substitution of the attempt language for

the conspiracy language.

Also at the plea hearing, when stating the elements that the

government would be required to prove in order to convict

Rose and Vasquez of the charges in Count One, the district

court listed the elements for conspiracy, rather than attempt.

The district court stated:

In Count 1 you [Rose and Vasquez] are charged with a

conspiracy to distribute a mixture or substance which

contained a detectable amount of methamphetamine. For

you to be found guilty of this offense, the government

would have to prove beyond a reasonable doubt the

following elements: (1) you conspired or agreed with at

least one other person to commit the crime of distributing

a mixture or substance which contained a detectable

amount of methamphetamine, and (2) you knowingly and

voluntarily joined the conspiracy.

Plea Hr’g Tr. at 16.

2. Analysis

In his pro se brief, Rose appears to contend that the district

court conducted Rose’s plea hearing in a manner that violated

Rule 11, and thus prevented him from entering a valid guilty

plea to Count One. The district court failed adequately to

inform Rose of the charges against him in Count One, failed

to determine whether Rose understood the charges against

him in Count One, and failed to ensure there was a sufficient

factual basis for the charge. Rose, however, did not

contemporaneously object to the manner in which the district

court conducted his plea hearing.

When a defendant has raised the objection below, we

review the district court’s compliance with Rule 11 for

harmless error. United States v. Syal, 963 F.2d 900, 904 (6th

Cir. 1992) (discussing the harmless error provision contained

10 United States v. Rose No. 02-5163

4We are aware that the Supreme Court recently granted certiorari in

United States v. Benitez, 310 F.3d 1221 (9th Cir. 2002), cert. granted, 72

U.S.L.W. 3121 (U.S. Dec. 8, 2003) (No. 03-167), to decide whether a

defendant, who pleaded guilty during a deficient Rule 11 proceeding and

did not contemporaneously object to the deficiency, must prove that he

would not have pleaded guilty absent the deficiency in order to obtain

reversal. We are also aware that many of our sister circuits impose such

a requirement on defendants seeking to obtain reversal under the plainerror standard, and some even impose it on defendants seeking to obtain

reversal under the harmless-error standard. See, e.g., United States v.

Dixon, 308 F.3d 229 (3d Cir. 2002) (plain-error standard); United States

v. Martinez, 289 F.3d 1023 (7th Cir. 2002) (plain-error standard); United

States v. Martinez, 277 F.3d 517 (4th Cir.), cert. denied, 537 U.S. 899

(2002) (plain-error standard); United States v. Prado, 204 F.3d 843 (8th

Cir.), cert. denied, 531 U.S. 1024 (2000) (harmless-error standard);

United States v. Westcott, 159 F.3d 107 (2d Cir. 1998), cert. denied, 525

U.S. 1084 (1999) (harmless-error standard); United States v. NoriegaMillan, 110 F.3d 162 (1st Cir. 1997) (harmless-error standard); United

States v. Lyons, 53 F.3d 1321 (D.C. Cir. 1995) (harmless-error standard);

United States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (harmless-error

standard); United States v. Vaughn, 7 F.3d 1533 (10th Cir. 1993), cert.

denied, 511 U.S. 1036 (1994) (harmless-error standard).

This circuit has not yet imposed on defendants, who seek to obtain

reversal of their convictions pursuant to guilty pleas based upon

deficiencies at their Rule 11 proceedings, a requirement that they prove

that they would not have pleaded guilty absent the deficiencies, and we

decline to do so in this case. Instead, we conclude that the error that

in Rule 11(h)). An error is not harmless if the defendant’s

substantial rights were affected. Id. In the present case, Rose

did not raise below the issue of the district court’s compliance

with Rule 11. When a defendant did not contemporaneously

object to the district court’s alleged failure to comply with the

requirements of Rule 11, we review for plain error. United

States v. Vonn, 535 U.S. 55, 59 (2002). “To establish plain

error, a defendant must show (1) that an error occurred in the

district court; (2) that the error was plain, i.e., obvious or

clear; (3) that the error affected defendant’s substantial rights;

and (4) that this adverse impact seriously affected the

fairness, integrity or public reputation of the judicial

proceedings.” United States v. Koeberlein, 161 F.3d 946, 949

(6th Cir. 1998).4
No. 02-5163 United States v. Rose 11

occurred during Rose’s Rule 11 proceeding was so egregious that it

prevented Rose from understanding what crime he was pleading guilty to,

and thus constitutes plain error. We will not impose on Rose the burden

of demonstrating that he would not have pleaded guilty absent the

deficiency.

In so holding, we point out that this case is fundamentally different

from Benitez, in that the error that occurred in this case impugns the

ascertainment of Rose’s guilt, whereas the error that occurred in Benitez

merely affected whether the defendant understood the terms of his plea

bargain. We conclude that the error that occurred in this case falls

squarely within the requirements imposed by Fed. R. Crim. P. 52(b)

because it affected Rose’s substantial rights. Although a defendant in

order to obtain reversal must typically show that the error was prejudicial,

i.e., that it “affected the outcome of the district court proceedings,” in

United States v. Olano, 507 U.S. 725, 734-35 (1993), the Supreme Court

stated: “There may be a special category of forfeited errors that can be

corrected regardless of their effect on the outcome.” In Olano, the

Supreme Court further stated that a “Court of Appeals should correct a

plain forfeited error affecting substantial rights if the error ‘seriously

affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. at 736. Such an error occurred in this case.

5

In 2003, Rule 11 was amended and renumbered. The 2003 version

requires district courts to conduct an even more thorough inquiry into a

defendant’s understanding of the charges against her before accepting a

plea of guilty or nolo contendere. In this opinion, we cite to the 2002

version of Rule 11, which was in effect when Rose pleaded guilty. On

remand, the district court should ensure that it complies with the 2003

version of Rule 11.

What used to be Rule 11(c)(1) is now part of Rule 11(b)(1). Rule

11(b)(1) now provides:

Before the court accepts a plea of guilty or nolo contendere, the

defendant may be placed under oath, and the court must address

the defendant personally in open court. During this address, the

court must inform the defendant of, and determine that the

Rule 11 specifies the procedure that district courts must

follow when accepting a defendant’s guilty plea. Rule 11(c)

requires, inter alia, “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 nature of the charge to

which the plea is offered.” Fed. R. Crim. P. 11(c)(1).5 Rule

12 United States v. Rose No. 02-5163

defendant understands, the following:

. . . 

(G) the nature of each charge to which the defendant is

pleading.

6What used to be Rule 11(f) is now Rule 11(b)(3). New Rule

11(b)(3) requires: “Before entering judgment on a guilty plea, the court

must determine that there is a factual basis for the plea.”

11(f) requires: “Notwithstanding the acceptance of a plea of

guilty, the court should not enter a judgment upon such plea

without making such inquiry as shall satisfy it that there is a

factual basis for the plea.” Fed. R. Crim. P. 11(f).6 Although

the procedure specified in Rule 11 is not constitutionally

required, the purpose of Rule 11 is “to assist the district judge

in making the constitutionally required determination that a

defendant’s guilty plea is truly voluntary. . . . [and] to produce

a complete record at the time the plea is entered of the factors

relevant to this voluntariness determination.” McCarthy v.

United States, 394 U.S. 459, 465 (1969); see also Syal, 963

F.2d at 904.

We have decided several cases in which the defendant

claimed that the district court violated Rule 11 because the

district court did not list the elements that the government

must prove beyond a reasonable doubt in order to convict the

defendant of the charges in the indictment. Compare Syal,

963 F.2d at 902-905 (holding that the district court’s failure

even to “rehearse the content of the indictment” or to list the

elements of the crime violated Rule 11); United States v.

Goldberg, 862 F.2d 101, 108-09 (6th Cir. 1988) (holding that

the district court’s failure to list the active concealment

element of the crime of misprision of a felony violated Rule

11 because that crime is uncommon); and United States v.

Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) (holding that

the district court’s “reading of the indictment and defendant’s

admission of guilt are not sufficient compliance” with

Rule 11 where the crime charged is complex and not easily

understood), with United States v. Edgecomb, 910 F.2d 1309,
No. 02-5163 United States v. Rose 13

1313 (6th Cir. 1990) (holding that district court adequately

explained the conspiracy charge at issue in that case by

reading the indictment accompanied by the government’s

recitation of the factual basis, because the conspiracy was

easily understood and the district court read the charges in the

indictment); and United States v. Ferguson, No. 96-6029,

1997 WL 764471, at *3-*4 (6th Cir. Dec. 3, 1997) (holding

that the district court’s failure to read the charges in the

indictment or list the elements of conspiracy to distribute

drugs did not violate Rule 11 because that crime is easily

understood, the government gave a detailed description of the

defendant’s conduct, the district court questioned the

defendant regarding the conduct that constituted the offense,

and the defendant stated that he had discussed the charges

with his attorney and understood the charges). Thus, we have

concluded that when a defendant claims that the district court

violated Rule 11 by failing during the plea colloquy to list the

elements of the crime charged, the sufficiency of the plea

colloquy depends upon the complexity of the crime charged.

“Where the crime is easily understood, several courts have

held that a reading of the indictment, or even a summary of

the charges in the indictment and an admission by the

defendant, is sufficient to establish a factual basis.” Van

Buren, 804 F.2d at 892. Additionally, we have held that a

simple conspiracy to distribute drugs is easily understood, and

thus a district court may comply with this part of Rule 11 by

merely reading the conspiracy charge from the indictment and

asking the defendant whether he understands it. Edgecomb,

910 F.2d at 1313.

Although Rose was convicted of a simple conspiracy to

distribute methamphetamine, a crime this court has held is

easily understood, we hold that the district court nonetheless

violated Rule 11(c)(1), and thus prevented Rose from entering

a valid guilty plea. Rule 11(c)(1) requires the district court to

inform the defendant of the charges against him and to

determine whether the defendant understands the nature of the

charge to which he is pleading guilty. Fed. R. Crim. P.

11(c)(1). “[A] determination of defendant’s understanding

14 United States v. Rose No. 02-5163

involves consideration of the nature of the charge and the

dialogue that took place between the defendant and the Court

during the Rule 11 proceeding.” Van Buren, 804 F.2d at 891.

In Edgecomb, this court considered the crime of conspiracy to

possess cocaine with intent to distribute and held that the

crime as alleged in that case, is easily understood, and thus

the district court there complied with Rule 11 by merely

reading the indictment where the government described the

facts constituting that conspiracy. Edgecomb, 910 F.2d at

1313. In this case, however, an examination of the record and

the dialogue that took place between the defendant and the

district court reveals that the defendant did not understand the

nature of the charge to which he was pleading guilty.

Here, the district court read the description of the charge in

Count One from the Superseding Indictment, while Count

One was stated differently in the plea agreement. Rose

objected to the district court’s reading of Count One of the

Superseding Indictment, insofar as it charged Rose with

conspiring to distribute five hundred grams of

methamphetamine, in violation of § 841(b)(1)(A), instead of

fifty grams of methamphetamine, in violation of

§ 841(b)(1)(B). Rose clarified that he was only pleading

guilty to fifty grams of methamphetamine, in violation of

§ 841(b)(1)(B), and thus obviated any Rule 11 problems that

might have arisen from the discrepancies between the

Superseding Indictment and the plea agreement regarding the

statutory provisions and the drug quantities. Rose did not

object, however, to the district court’s reading of Count One

of the Superseding Indictment, insofar as it charged Rose with

conspiring to distribute methamphetamine, instead of

attempting to distribute methamphetamine. Therefore, the

district court failed to determine whether Rose understood

that he was pleading guilty to conspiracy. The description of

the charges in the plea agreement indicates that Rose thought

he was pleading guilty to attempt. The district court,

however, accepted Rose’s guilty plea and entered a judgment

of conviction on the crime of conspiring to distribute

methamphetamine. Because Rose might not have understood
No. 02-5163 United States v. Rose 15

that he was pleading guilty to conspiring to distribute

methamphetamine, rather than attempting to distribute

methamphetamine, he did not enter a valid guilty plea to

Count One.

Rule 11(f) requires the district court to determine that there

is a sufficient factual basis for the charge to which the

defendant is pleading guilty. Fed. R. Crim. P. 11(f). We have

held, “[W]hile the exact method of producing a factual basis

on the record is subject to a flexible standard of review, the

need to have some factual basis will continue to be a rule

subject to no exceptions.” Goldberg, 862 F.2d at 106

(quoting United States v. Fountain, 777 F.2d 351, 357 (7th

Cir. 1985)). We have also recognized that the district court

may determine the existence of a factual basis from various

sources, including a statement by the prosecutor or a

statement by the defendant. Id. at 105. The description of the

charges in the plea agreement indicates that Rose thought he

was pleading guilty to the crime of attempting to distribute

methamphetamine mixture. When ascertaining whetherthere

was a sufficient factual basis, the district court merely asked

Rose whether the written factual basis in the plea agreement

was true as far as Rose knew, and Rose agreed. Rose’s

confusion regarding the charge to which he was pleading

guilty likely spilled over into his concession that the factual

basis was true, and thus his concession does not constitute a

sufficient factual basis. Because the district court did not

determine that there was a sufficient factual basis for

conspiring to distribute methamphetamine mixture, Rose did

not enter a valid guilty plea to Count One.

All of the Sixth Circuit cases cited above, discussing the

procedure the district court must follow when accepting a

defendant’s guilty plea, were decided under the harmless error

standard. In this case, however, Rose did not raise the issue

of compliance with Rule 11 in the district court. Therefore,

we must review the district court’s actions for plain error.

Vonn, 535 U.S. at 59. In Syal, we held that, in a complex

case, the district court’s failure to list the elements of the

16 United States v. Rose No. 02-5163

7We do, however, point out that “defects in an indictment do not

deprive a court of its power to adjudicate a case.” United States v. Cotton,

535 U.S. 625, 630 (2002).

crime to which the plea is offered “cannot be said to be

harmless.” 963 F.2d at 905. In reaching this conclusion, in

Syal, we noted that the defendant’s substantial rights were

affected by the district court’s failure to list the elements. Id.

at 904. For the reasons discussed above, the errors committed

by the district court in this case affected Rose’s substantial

rights. To meet the higher plain error standard, in addition to

finding that the errors affected Rose’s substantial rights, we

must also find that the error “seriously affected the fairness,

integrity or public reputation of the judicial proceedings.”

Koeberlein, 161 F.3d at 949. Because the district court’s

violations of Rule 11 prevented Rose from understanding the

charge to which he was pleading guilty, the violations

seriously affected the fairness of the proceedings and rose to

the level of plain error.

B. District Court’s Jurisdiction to Accept Rose’s Guilty

Plea to Attempt

In his pro se brief, Rose also appears to argue that the

district court lacked jurisdiction to accept Rose’s guilty plea

and to sentence Rose on Count One because Rose pleaded

guilty to attempting to distribute methamphetamine, which

was not charged in the Superseding Indictment. The colloquy

at Rose’s plea hearing and the district court’s judgment of

conviction indicate that Rose actually pleaded guilty to

conspiring to distribute methamphetamine, which was

charged in the Superseding Indictment. Therefore, the district

court did not, as Rose contends, actually accept a guilty plea

to a crime not charged in the Superseding Indictment. This

conclusion and our decision to vacate Rose’s plea due to the

Rule 11 violations makes further analysis of this assignment

of error unnecessary.

7
No. 02-5163 United States v. Rose 17

8

At one point, Rose seems to allege that the Superseding Indictment

was insufficient on this count. Appellant’s Br. at 4 (stating that the charge

was not “proper at indictment”). This court has held, “In order for an

indictment to be sufficient, it must contain the elements of the offense

charged and fairly inform a defendant of the charges against which he

must defend.” Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989)

(citing Hamling v. United States, 418 U.S. 87, 117 (1974)). This claim

has no merit because Count Three clearly charged Rose with carrying a

firearm during and in relation to a drug trafficking offense, in violation of

18 U.S.C. § 924(c).

C. Sufficiency of the Evidence for Count Three

In his pro se brief, Rose argues that there was insufficient

evidence to support his conviction on Count Three of the

Superseding Indictment, which charged Rose with carrying a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c).8 By pleading guilty, Rose

admitted the truth of all of the facts set forth in the

Superseding Indictment. United States v. Parker, 292 F.2d 2,

2 (6th Cir. 1961);see also United States v. Kyle, No. 01-6014,

2001 WL 1580232, at *4 (6th Cir. Dec. 6, 2001).

Furthermore, the district court properly determined that the

facts stated in the Superseding Indictment and the factual

basis are sufficient to support a conviction for carrying a

firearm during and in relation to a drug trafficking offense;

therefore, we reject this assignment of error.

Section 924(c) provides:

any person who, during and in relation to any crime of

violence or drug trafficking crime . . . for which the

person may be prosecuted in a court of the United States,

uses or carries a firearm, or who, in furtherance of any

such crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or drug

trafficking crime —

(i) be sentenced to a term of imprisonment of not less

than 5 years.

18 United States v. Rose No. 02-5163

18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, a

defendant can be charged and convicted of violating § 924(c)

under three different theories, including (1) using a firearm

during and in relation to a drug trafficking crime, (2) carrying

a firearm during and in relation to a drug trafficking crime, or

(3) possessing a firearm in furtherance of a drug trafficking

crime. Rose was charged under the “carry” prong of § 924(c).

Rose argues that to be charged under the “carry” prong, the

defendant must have actively employed the firearm. In his

brief, Rose states:

A weapon in a car does not satisfy the carry standard set

forth in 18 USC § 924(c)(1)(a). [sic]. Bailey v US, 516

US 137.

In Bousley v US, 523 US 614, the Court held that, active

employment of a firearm is a requirement of charging a

defendant with 924(c). Active employment includes uses

such as brandishing, displaying, bartering, striking with,

firing, or attempting to fire the weapon, but does not

include mere possession of a firearm; thus, a defendant

cannot be charged under § 924(c)(1) merely for

(1) storage of a weapon near drugs or drug proceeds, or

(2) placement of a firearm to provide a sense of security

or to embolden.

Appellant’s Br. at 4. Although Rose is correct that Bailey v.

United States, 516 U.S. 137, 138-39 (1995), and Bousley v.

United States, 523 U.S. 614, 616 (1998), discuss the active

employment requirement, in those cases, the defendants were

convicted under the “use” prong of § 924(c). In the present

case, Rose was charged under the “carry” prong of § 924(c).

In Bailey, the Supreme Court held that to obtain a conviction

under the “use” prong, the government must show that the

defendant actively employed the firearm. Bailey, 516 U.S. at
No. 02-5163 United States v. Rose 19

9

Bousley discusses “the permissibility of post-Bailey collateral

attacks on § 924(c)(1) convictions obtained pursuant to guilty pleas.”

Bousley, 523 U.S. at 618.

148-49.9 The Court further held that showing that the

defendant merely possessed the firearm was not sufficient to

obtain a conviction under the “use” prong; therefore, “A

defendant cannot be charged under [the “use” prong of]

924(c)(1) merely for storing a weapon near drugs or drug

proceeds.” Bailey, 516 U.S. at 149.

The Court in Bailey additionally noted that the government

is not required to show that a defendant actively employed the

firearm to obtain a conviction under the “carry” prong. Id. at

150 (stating, “The ‘carry’ prong of § 924(c)(1) . . . brings

some offenders who would not satisfy the ‘use’ prong within

the reach of the statute”). Later, in Muscarello v. United

States, 524 U.S. 125, 128-39 (1998), the Court discussed the

elements the government must prove to obtain a conviction

under the “carry” prong of § 924(c). To obtain a conviction

under the “carry” prong, the government must show the

defendant transported the firearm, with some degree of

agency or control, during and in relation to a drug trafficking

crime. See Muscarello, 524 U.S. at 134, 139; Hilliard v.

United States, 157 F.3d 444, 449 (6th Cir. 1998). In

Muscarello, the Court held that the government may obtain a

conviction under the “carry” prong by showing the defendant

transported the firearm in his car during and in relation to a

drug crime. 524 U.S. at 139. The Court stated that the

“carry” prong “applies to a person who knowingly possesses

and conveys firearms in a vehicle, including in the locked

glove compartment or trunk of a car, which the person

accompanies.” Id. at 126-27.

In the present case, the factual basis accompanying Rose’s

plea agreement states, “After Rose and Vasquez were arrested

in Meigs County, police found a loaded .45 caliber handgun

in the passenger compartment of [their] automobile.” R. at 86

20 United States v. Rose No. 02-5163

(Factual Basis). Rose and Vasquez used this automobile to

transport the methamphetamine from Dalton, Georgia, to

Meigs County, Tennessee. Under Muscarello and Hilliard,

a defendant may be convicted under the “carry” prong if he

possesses and conveys a firearm. The district court’s finding

that the firearm was located in the passenger compartment of

the car Rose used to travel to Meigs County and to deliver the

methamphetamine was sufficient evidence to support Rose’s

conviction under the “carry” prong. Therefore, we reject

Rose’s claim that there was insufficient evidence to support

his conviction for carrying a firearm during and in relation to

a drug trafficking offense, in violation of 18 U.S.C. § 924(c).

Moreover, the fact that we are vacating Rose’s conviction on

Count One does not require us to vacate Rose’s conviction on

Count Three because § 924(c) only requires that the district

court be convinced that the defendant carried a weapon in

connection with a drug trafficking offense for which he may

be prosecuted. United States v. Ospina, 18 F.3d 1332, 1335-

36 (6th Cir.), cert. denied, 512 U.S. 1226 (1994).

D. District Court’s Compliance with Rule 11 for Count

Three

1. Factual Background

The description of the charge in Count Three in the plea

agreement also differs from that stated in the Superseding

Indictment. In the Superseding Indictment, Count Three

states:

RALPH VASQUEZ, REGINALD CHARLES ROSE,

III, and ERIC ESTRADA, aided and abetted by each

other, did knowingly and intentionally carry a firearm,

that is, a loaded .45 caliber Colt handgun, during and in

relation to the drug trafficking crimes set out in Counts

One and Two above, in violation of Title 18, United

States Code, Sections 2 and 924(c).
No. 02-5163 United States v. Rose 21

R. at 34 (Superseding Indictment) (emphasis added). In the

plea agreement, paragraph one states:

The defendant agrees to plead guilty to the following

counts of a Superseding Indictment filed against him in

the above-styled case:

. . . Count Three charging him with a violation of

Title 18, United States Code, Section 924(c), that is,

knowingly and intentionally carry [sic] a firearm, during

and in relation to a drug trafficking crime.

R. at 81 (Plea Agreement). Thus, the description in the plea

agreement of the charge in Count Three omits the “aided and

abetted by each other” language that is included in the

Superseding Indictment.

At Rose’s plea hearing, the district court read the charge in

Count Three from the Superseding Indictment, including the

“aided and abetted by each other” language. In response,

Rose pleaded guilty. No objections were made regarding the

district court’s reading of the charge in Count Three. Also at

the plea hearing, when stating the elements that the

government would be required to prove in order to convict

Rose and Vasquez on the charge in Count Three, the district

court omitted the “aided and abetted by” language. The

district court stated:

In Count 3 you are charged, Mr. Vasquez and Mr.

Rose, with carrying a firearm during and in relation to

the commission of a drug-trafficking offense. For you to

be convicted of this crime, the government would have

to prove beyond a reasonable doubt the following two

elements: (1) you committed the drug-trafficking offense

alleged in Count 1 of the superseding indictment, and

(2) during and in relation to the commission of that drugtrafficking offense, you knowingly carried a firearm.

Plea Hr’g Tr. at 16.

22 United States v. Rose No. 02-5163

2. Analysis

Unlike the discrepancy between the two versions of Count

One, the difference between the language of Count Three in

the Superseding Indictment and in the plea agreement did not

prevent Rose from entering a valid guilty plea to Count

Three. In the Superseding Indictment, Rose was charged both

as a principal and as an aider and abettor; therefore, the

district court did not err in reading the elements for carrying

a firearm as a principal and accepting Rose’s plea to carrying

a firearm as a principal.

As discussed above, when a defendant did not

contemporaneously object to the district court’s alleged

failure to comply with the requirements of Rule 11, we review

for plain error. Vonn, 535 U.S. at 59. Rule 11 specifies the

procedure to be followed by a district court in accepting a

defendant’s guilty plea. Rule 11(c) requires, among other

things, that “[b]efore 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 nature of the charge to

which the plea is offered.” Fed. R. Crim. P. 11(c).

Count Three of the Superseding Indictment charges Rose

with carrying a firearm during and in relation to a drug

trafficking crime, aided and abetted by the co-conspirators.

The plea agreement, however, describes Count Three as only

charging Rose with carrying a firearm in relation to a drug

trafficking crime. Thus, the “aided and abetted” language

included in the Superseding Indictment was omitted from the

plea agreement. During the plea colloquy, the district court

read Count Three, as stated in the Superseding Indictment,

but then listed the elements for carrying a firearm without

listing the aiding and abetting requirement.

The omission of the “aided and abetted by” language from

the plea agreement and from the district court’s reading of the

elements of the offense during the plea colloquy did not
No. 02-5163 United States v. Rose 23

10Regardless of whether this additional language makes the

Superseding Indictment duplicitous or is mere surplusage, Rose may not

argue that the Superseding Indictment is defective on these bases because

by pleading guilty, Rose waived his objection to all non-jurisdictional

defects in the indictment. United States v. Moloney, 287 F.3d 236, 239

(2d Cir. 2002).

prevent Rose from entering a valid guilty plea to Count

Three. In Count Three of the Superseding Indictment, Rose

was charged as both a principal and an aider and abettor;10

therefore, the district court did not err in reading the elements

for carrying a firearm as a principal or accepting Rose’s plea

to carrying a firearm as a principal. Count Three of the

Superseding Indictment states that the defendants “aided and

abetted by each other, did knowingly and intentionally carry

a firearm.” This language charged Rose with carrying the

firearm himself, as well as aiding and abetting the other

defendants in the offense of carrying a firearm. To charge a

defendant with aiding and abetting, but not committing the

crime himself, an indictment would state that the defendant

aided and abetted another in the commission of the crime.

See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th

Cir.), cert. denied, 493 U.S. 834 (1989) (considering the

defendant charged “with aiding and abetting [another] in

knowingly receiving and possessing illegal machine guns in

violation of 18 U.S.C. § 2 and 26 U.S.C. § 5861(c)”).

Because Count Three of the Superseding Indictment charged

Rose with carrying a firearm as a principal and the written

plea agreement described Count Three as charging Rose with

carrying a firearm as a principal, the district properly advised

Rose of the nature of the charges against him in compliance

with Rule 11(c)(1).

Additionally, in a recent unpublished opinion, we held that

aiding and abetting is “merely a theory of liability, and not an

offense distinct in and of itself.” United States v. Taniguchi,

Nos. 00-4495, 00-4496, 2002 WL 31371978, at *13 (6th Cir.

Oct. 11, 2002) (citing United States v. Schuh, 289 F.3d 968,

976 (7th Cir. 2002)). In Taniguchi, we upheld the

24 United States v. Rose No. 02-5163

11In Taniguchi, we held that the indictment was sufficient because

it cited 18 U.S.C. § 2, which addresses aiding and abetting liability.

United States v. Taniguchi, Nos. 00-4495, 00-4496, 2002 WL 31371978,

at *13 (6th Cir. Oct. 11, 2002).

defendant’s conviction for aiding and abetting another in

receiving illegal firearms, even though the indictment did not

include language referring to aiding and abetting liability.

11

Id. at *13. The reasoning of Taniguchi applies in this case.

The omission of the “aided and abetted language” from the

plea agreement and from the district court’s reading of the

elements of the offense during the plea colloquy does not

constitute a violation of Rule 11.

E. Drug Quantity Used to Calculate Rose’s Sentence

1. Factual Background

On January 4, 2002, Rose was sentenced to 138 months’

imprisonment (seventy-eight months on Count One and sixty

months on Count Three) and four years of supervised release.

At the sentencing hearing, Rose joined Vasquez’s objection

to the amount of methamphetamine used to determine each of

their base offense levels. During the objection, Vasquez

argued that under United States Sentencing Guidelines

(“U.S.S.G.”) § 2D1.1, Application Note 12 (“Note 12”), the

additional two pounds of methamphetamine that Rose and

Vasquez agreed to deliver should not be considered in

determining his base offense level because Vasquez and Rose

were not reasonably capable of delivering the additional two

pounds due to their imminent arrest.

In response to the objection, the government argued that

under Note 12, these additional two pounds of

methamphetamine should be considered in determining

Rose’s and Vasquez’s base offense levels because they agreed

to deliver, intended to deliver, and were reasonably capable

of delivering the additional two pounds. The government

supported its argument by showing that during the same
No. 02-5163 United States v. Rose 25

12During March 2001, the Georgia Bureau of Investigation (“GBI”)

investigated Estrada and Hector Garnica (“Garnica”). On March 12,

2001, Estrada sold one-half of a pound of methamphetamine to a Georgia

CI. Then, on March 16, 2001, Estrada and Braulio Garnica (“Braulio”)

delivered an additional one pound of methamphetamine to the CI. On

March 18, Estrada arranged to deliver two pounds of methamphetamine

to the same CI for $19,000. On March 24, 2001, Braulio delivered the

two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica,

and another charged co-conspirator were also present at that delivery.

month, Estrada, Rose’s and Vasquez’s supplier, engaged in

transactions for one-half of a pound, one pound, and two

pounds of methamphetamine.12

The district court overruled the objection and accepted the

calculations contained in the Presentence Report (“PSR”).

The PSR used the additional two pounds of

methamphetamine that Rose and Vasquez agreed to deliver

and the one pound of methamphetamine that Rose and

Vasquez actually delivered to determine Rose’s base offense

level. In accordance with the PSR, the district court set

Rose’s base offense level for Count One at level thirty-two.

Rose received a three-level downward adjustment for

acceptance of responsibility, making Rose’s total offense

level twenty-nine for Count One. The district court also

granted a downward departure of three levels in accordance

with the government’s § 5K1.1 motion, which reduced Rose’s

offense level to twenty-six and resulted in a sentencing

guideline range of eighty-seven to ninety-seven months for

Count One.

2. Analysis

Rose’s claim of error regarding the quantity of drug used to

determine his base offense level is identical to his codefendant’s claim, which this court analyzed fully in United

States v. Vasquez, 352 F.3d 1067 (6th Cir. 2003). Consistent

with Vasquez, we hold that the district court did not err in

determining Rose’s base offense level based upon both the

26 United States v. Rose No. 02-5163

one pound of methamphetamine that Rose actually delivered

and the additional two pounds of methamphetamine that Rose

agreed to deliver. Note 12 provides:

In an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled

substance shall be used to determine the offense level

unless the sale is completed and the amount delivered

more accurately reflects the scale of the offense. . . . If,

however, the defendant establishes that he or she did not

intend to provide, or was not reasonably capable of

providing, the agreed-upon quantity of the controlled

substance, the court shall exclude from the offense level

determination the amount of controlled substance that the

defendant establishes that he or she did not intend to

provide or was not reasonably capable of providing.

U.S.S.G. § 2D1.1, cmt. n.12 (2001). Rose failed to prove that

he did not intend to provide or that he was not reasonably

capable of providing the additional two pounds of

methamphetamine; therefore, the district court properly used

a drug quantity of three pounds of methamphetamine mixture

to determine Rose’s base offense level.

Rose raises one additional claim of error regarding the

calculation of his sentence. Rose contends that the PSR

incorrectly attributes 4.5 pounds of methamphetamine

mixture to him in the determination of his base offense level.

This claim is meritless because it is based upon a misreading

of the PSR. Although the PSR refers to a drug quantity of 4.5

pounds of methamphetamine mixture, it attributes that

amount to Garnica, Estrada’s supplier. The 4.5 pounds was

not attributed to Rose. Only three pounds of

methamphetamine mixture were attributed to Rose and his

offense level was based upon a drug quantity of three pounds

of methamphetamine mixture.
No. 02-5163 United States v. Rose 27

IV. CONCLUSION

The district court committed plain error by accepting

Rose’s guilty plea to Count One in a manner that violated

Rule 11. The district court did not commit plain error in

accepting Rose’s guilty plea to Count Three. Therefore, we

VACATE Rose’s conviction and sentence as to Count One

and REMAND for proceedings consistent with this opinion.