The Sanchez appellants aver that they should receive proper and adequate notice via a superseding indictment and be allowed to plead anew. The government responds that neither appellants' substantial rights were affected because neither challenged the government's factual basis for the plea. In his reply brief, Ignasio asserts that it is not clear whether the absence of drug quantity in the indictment results in a voluntary and knowing plea. Variance from the requirements of Rule 11 should be disregarded unless substantial rights are affected. Furthermore, when a defendant fails to object to the district court's noncompliance with Rule 11, this Court reviews the issue for plain error only.
Plain error is that which is obvious and prejudicial, affecting substantial rights of the defendant.
As stated above, in light of Apprendi, drug quantity is an element of the offense that must be charged in the indictment. Here, the plea colloquy was technically inadequate because the indictment did not contain drug quantity, arguably resulting in Ignasio's and Santiago's failure to understand the nature of the charges against them. Both, however, were advised during the plea colloquy that they could face 40 years or life in prison, depending on the quantity of drugs for which they were held responsible. Further, the court advised them that their sentences would be based on the amount of drugs for which they were found responsible at sentencing. Nevertheless, they pled guilty to the indictment with that knowledge.