NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0423n.06 No. 11-6409 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,
v. DARRELL B. PA TRICK, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KENTUCKY

BEFORE: M ERRITT, CLAY, and DONALD, Circ uit Jud ges. MERRITT, Circuit Judge. In this direct appe al, we r eview the validity of def endant Dar rell Patrick’ s plea of guilty to drugand fire arm c harg es. De fenda nt reque sts withdrawal of his guilty plea a nd a re mand to the district court be cause his plea wa s not knowing a nd voluntary
. Duringthe plea he aring , the mag istrate judg e did not state the mandatory minimum penalty

that defe ndant fa ced f

or the fir ear

m char g e. Such an omission is a violation of the plain languag e of Fe dera l Rule of Criminal Procedure 11(b)( 1)(I ), which state s that “the c ourt must inform the defe ndant of, a

nd deter mine that the def

endant unde rstands,” a

ny mandatory -minimum sentence he fa ces. We hold that the fa ilure to ensure that defe ndant under stood that he fac ed a ma ndatory

minimum sentenc e of f

ive y ear s for the f

irea rm cha rg e af fec ted his substantial rights a nd we
vacate and r emand to the district cour t. I. F actsUnited States v. Patrick

No. 11-6409 The fa cts are straightforwa rd and not in dispute. Six controlled buy s of oxy codone w ere made f rom defe ndant at his reside nce in Ma g offin County , Kentucky , betwee n August and October 2009. Eac h buy

involved betwee n two and four pills. During the la st buy , the buy er, who was a

n informant for

the g overnme nt, saw def endant r etrieve the oxy codone pills from a g old-colore d container . Duringa sea rch of defe ndant’s house the next day , the g old-colore d container was found in a

safe with six ox y codone ta blets and 68 fire arms. De fenda nt was indicted on cha

rg es of distributing, a

nd possessing w ith intent to di stribute, ox ycodone, a s well as two fire arm c harg es. De fenda nt entere d into a plea a g ree ment wher e he ple aded guilty to one count of distribution in viol ation of 21 U.S.C. § 841(a)( 1), one c ount of possession with intent to distribute in violation of 21 U.S.C . § 841(a) (1), a nd one count of

possessing a

firea rm in further ance of a dr

ug traff icking crime in violation of 18 U.S.C. § 924(c) . In exchang e, the g overnme nt dropped six of the nine char g es. The f irea rm cha rg e ca rried a mandatory

minimum penalty of 60 months that must run consecutively to any other sente nce. A dded to the ra ng e of 10-16 months for the dr

ug char g es, defe ndant’s guideline ra ng e wa s 70-76 months. The 1 sentenc ing judg e var ied downwa rd on the drugchar g es and se ntence d defe ndant to 60 months and one da

y . Def endant did not object to his g uilty plea or sentenc e below a

nd he timely appea led to this Court. II. Analysi s

Def endant r ece ived an of

fense level of 12 a

nd a cr iminal hist ory

cate g ory of I
. 1 2United States v. Patrick

No. 11-6409 Def endant c halleng es the voluntarine ss of his guilty plea to possessingfirea

rms in further ance of a dr

ug traff icking crime. H e conte nds that the mag istrate judg e who a cce pted his plea f ailed to comply

with Fede ral Rule of Criminal Proce dure 11( b)(1) (I ) by failing to properly 2 advise de fenda

nt that he fa ced a

mandatory-minimum sentence of five y ear s on the fire arm char g e. The mag istrate judg e neve r cor rec tly informed, nor

made c erta in that defe ndant understood, that the f

irea rm cha rg e under 18 U.S.C. § 924(c) c arr ied a mandatory -minimum fivey ear sentenc e that must run conse cutively to any other ter m of imprisonment. After a sking defe ndant seve ral que stions and informing de fenda nt of the rig hts he was r elinquishing by enter ing a plea, the ma g istrate judg e said, “ Iwant to re view with y ou ag ain just briefly the maxi mum penalties y ou fac e, sir, on a ple a of guilty . And these a re c ontained in y our plea ag ree ment at par ag raph 4 on pa g e 3. . . . On Count 9, which is a c harg e of posse ssion of a firea rm in further ance of a dr

ug traff icking crime, the maximum period of inc arc eration is not less than five year s. And that is a per iod of imprisonment that’s consec utive to any sentenc e imposed on Counts 1 and 7. Do y ou understand that as well sir? ” The defe ndant answe r, “Y eah.” Rearr aig nment (Plea) H ear ing at18-19 (empha sis added). The mag istrate judg e should have said
Rule 11 Pleas 2

. . . . (b) Consideringand Ac ceptinga Guilty or Nolo Contender e Plea (1) Advising and Qu es tioning the Def endant. Be fore the court acc epts a plea of g uilty
. . ., the defendant must be placed under oath a n d the court must addre ss the defe ndant per sonally

in open cour

t. Duringthis address, the c ourt must inform the defe ndant of, a

nd deter mine that the def

endant unde rstands, the following :

. . . . (I ) any mandatory

minimum penalty

. . . . 3United States v. Patrick

No. 11-6409 that the minimum period of inc arc eration is not less than five year s on the fire arm c harg e. The
err or on the pa

rt of the mag istrate judg e wa s made be cause he re ad fr om the plea a g ree ment itself, which is not a model of c larity . Rather than e x plicitly stating that the firea

rm cha rg e
car ried a mandatory-minimum sentence of five year s, the plea a g ree ment states “the max imum statutory punishment for Count 9 is not l ess than 5 y ear s nor more tha n L ife imprisonment,
consec utive to a term of imprisonment for Count 1 or Count 9.” Pl ea A g ree ment at p.3, ¶ 4. This confusinglanguag e fr om the plea a g ree ment beca me an outrig ht error

when the ma g istrate judge simply

rec ited the first par

t of the sentenc e at the ple a hea ring without its ending , “The maxi mum period of inca

rce ration is not less than five year s.” Compounding this error , the mag istrate judg e we nt on to say just mom ents later, “ These
are the maximum penalties you fac e on ea ch of the se counts. Do you understand the maxi mum penalties, Mr. Patric k? ” Rea rra ignme nt (Plea) He aringTr. at 19 ( emphasis adde d). The mag istrate judg e then e x plained that the Guide lines would be used to “a rrive at the corr ect sentenc e” a

nd that the def

endant’ s attorney

would have the opportunity to argue for

a more lenient sentenc e. The mag istrate judg e conc luded this portion of the colloquy with defe ndant by saying, “ Idon’t know what y our sentenc ing r ang e mig ht be. B ut whateve r that ra ng e is under the . . . Guidelines, the judg e will have the discretion to sentenc e you within that rang e or ba sed on appropr iate fa ctors above or below that rang e.” Id . at 19-23. While this was all true as to the drugchar g es, the mag istrate judg e neve r told defe ndant that the sente ncingjudge would have no discretion to use the Guidelines and g o below the mandatory minimum for the f

irea rm cha rg e.

4United States v. Patrick

No. 11-6409 In addition, defe ndant’s own attorney may have mislea d the def

endant a bout the mandatory

term of imprisonment he f ace d. Prior to sentencing , defe nse counse l filed a sentenc ing me morandum re questing that the cour t sentence defe ndant to “super vised probation.” Duringthe sentenc ing he aring , defe nse counse l reque sted “some kind of le niency” for defe ndant and he se emed to be r equestingsupervised r elea se instead of incar cer ation. Sentencing Hea ring Tr. at 7- 9. Duringargument on behalf of his client, he told the cour t, “Some of the lawy ers in the Western District say

that their judg es have g rante d below mandatory minimum s.” Id. at 9. Six day s after sentenc ing, de fenda

nt wrote to the district judg e re questing that he “r econside r” the 60- month sentence and plac e def endant on “ home incar cer ation wher e I can w ork.” L etter to District Court from Dar

rell Patrick. The statements by defe ndant’s attorne y

at the sente ncing hear ing, c ombined with the filings by both defe ndant and his attorne y , contribute to our view that defe ndant may

not have unde rstood that he fa ced a mandatory -minimum sentence of five y ear s on the fire arm c harg e. The plain-e rror

standard r equire s that defe ndant demonstrate that the Rule 11 violation aff ecte d his substantial rights. United States v. Vonne r , 516 F.3d 382, 386 ( 6th Cir. 2008) (en banc) . We rec ently

reiter ated that a

“[f]ailure to ensure that the defe ndant under stands the mandatory

minimum may

. . . rende r a ple a not voluntary , and a ple a that is not voluntary is undoubtedly

an impairment of a

defe ndant’s substantial rig hts.” United States v. Martin , 668 F.3d 787, 792 ( 6th Cir. 2012). L ooking a t the entire r ecor d, we c annot say that defe ndant’s plea was voluntary . The c onfusing languag e in the plea ag ree ment itself, the mag istrate’s judg e’s
err oneous statement dur ing the hear ing, a nd the sug g estion that defe ndant’s attorne y may not 5United States v. Patrick

No. 11-6409 have pr operly

advised de fenda

nt that the district court lac ked the discr etion to sentence him below the f

ive-y ear mandatory

minimum based on his stateme nts during the sentenc ing he aring about def endants in the Western D istrict of Kentuc ky rec eiving sentenc es below the mandatory minimum , all lead us to conc lude that def endant may

not have unde rstood the sentenc e he f ace d. When confronte d with a Rule 11 err or such a s this one, the appropr iate re medy is to vacate the plea a nd rema nd to the district court. To aff ect de fenda

nt’s substantial rig hts require s that defe ndant “show a rea sonable probability

that, but for the e rror , he would not have enter ed the plea .” United States v. Dominguez Be nitez , 542 U.S. 74, 83 (2004). The streng th of the g overnme nt’s case conce rning the fire arm c harg e is also a c onsideration her e. To prove a violation under 18 U .S.C. § 924(c), the g overnme nt must show that the defenda nt possessed the fire arm to adva nce or promote the underlying of

fense . There is no evidence in the rec ord bef ore us that de fenda

nt was ar med duringany

of the tra nsactions wher e he sold oxy codone. T he sea rch w arr ant did not mention firea rms. The g

uns were found in a saf

e with the g old-colore d container that the informant ha d seen the previous day

and fr om which def

endant ha d retrie ved oxy codone ta blets. The proximi ty of the g old-colore d container containingox y codone to the guns was the ba sis for the fire arm char g es. Ther e is evidenc e that def endant wa s a gun collector and that the guns in the safe wer e collector ’s items, not weapons that would be used in a stre et-leve l drug deal. While we do not opine on the streng th or wea kness of the f

irea rm cha rg e, the e vidence of ac tual g un use by defe ndant in conjunction with a drugsale is not overwhelming on the rec ord bef ore us.

6United States v. Patrick

No. 11-6409 In sum, the rec ord lac ks sufficient indicia tha t defe ndant ac tually

understood that he f

ace d a mandatory -minimum sentence of five y ear s as re quired by

Fe dera l Rule of Criminal Procedure 11(b)( 1)(I ), and the totality of the c ircumstance s lead us to hold that defe ndant’s substantial rig hts were aff

ecte d. Conclusion Be cause we c annot say

that defe ndant under stood that his plea of guilty would result in a mandatory -minimum sentence of five y ear s, we re mand to allow def endant to withdra

w his plea.

7