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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 91-8671
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LANIER WATCH,
Defendant-Appellant.
________________________________________
Appeal from the United States District Court
for the Western District of Texas
________________________________________
(November 5, 1993)
Before JONES, DeMOSS, Circuit Judges, and BARBOUR,1 District Judge
BARBOUR, District Judge
Defendant, Gary Watch, appeals his conviction on the ground
that the district court violated Rule 11 of the Federal Rules of
Criminal Procedure in accepting his guilty plea. Watch also
appeals the district court's denial of his motion to suppress
evidence and seeks a determination that he has been denied his
right to effective assistance of counsel. We agree with Watch's
Rule 11 argument, and therefore vacate his conviction so that he
may be given an opportunity to replead. We dismiss as premature
Watch's claims regarding the denial of his motion to suppress and
ineffective assistance of counsel.
1Chief Judge of the United States District Court for the
Southern District of Mississippi, sitting by designation.

I.
By grand jury indictment filed May 9, 1991, Watch and his
codefendant were charged with possessing with intent to distribute
at least fifty grams of cocaine base, "crack" cocaine, in violation
of 21 U.S.C. § 841(a)(1) and with carrying a firearm during the
commission of that offense in violation of 18 U.S.C. § 924(c). On
June 24, 1991, Watch's trial counsel filed a motion to suppress the
evidence which served as the basis for the charges against Watch,
and on September 26, 1991, the district court, having conducted a
hearing regarding the matter, entered an order denying Watch's
motion.
Soon thereafter, on September 30, 1991, a superseding
information was filed against Watch and his codefendant charging
them as follows:
On or about April 30, 1991, in the Western District of
Texas, Defendants, Gary Lanier Watch and Byron Mark
Sanderson unlawfully, knowingly, and intentionally did
possess cocaine base, also known as "crack" cocaine, a
Schedule II Narcotic Drug Controlled Substance, with
intent to distribute the same, in violation of Title 21,
United States Code, Section 841(a)(1).
No mention of the amount of drugs involved was made in this
superseding information. On that same day, Watch entered into a
plea agreement wherein he agreed to enter a plea of guilty to the
superseding information in exchange for an agreement by the United
States Attorney to dismiss the original indictment at sentencing
and refrain from prosecuting Watch for other drug and firearm
offenses that may have arisen out of the conduct which led to
Watch's arrest and indictment.
2

Pursuant to the plea agreement, Watch was re-arraigned on and
entered his plea of guilty to the charge contained in the
superseding information. After Watch had entered his guilty plea,
the government invited him to provide assistance to law enforcement
officers in exchange for which the government would file a motion
for a downward departure from the offense level determined under
the United States Sentencing Guidelines ("Guidelines"). Watch
assisted in the prosecution of two individuals to whom he had been
selling "crack" cocaine and the government, in turn, filed a motion
for downward departure and presented evidence of the nature and
extent of Watch's assistance at Watch's sentencing hearing held on
December 6, 1991.
At the sentencing hearing, the district court accepted the
Guidelines calculation contained in the presentence report.2 The
district court granted the government's motion for downward
departure, thereby reducing the total offense level from 32 to 28.3
The district court then sentenced Watch to a term of imprisonment
2The presentence report calculated the applicable Guidelines
range as follows: Watch was determined to have possessed 71.6
grams of crack cocaine, thus establishing a Base Offense Level of
32; this level was increased by two due to Watch's possession of
a firearm during the offense; this level was then reduced by two
for Watch's acceptance of responsibility (resulting in a Total
Offense Level of 32); Watch's seven criminal history points
established a Criminal History Category of IV. The imprisonment
range provided for an Offense Level of 32 with a Criminal History
Category of IV is 168 to 210 months.

3The sentencing range provided for an Offense Level of 28
with a Criminal History Category of IV is 110 to 137 months.
3

of 120 months with five years supervised release and imposed a fine
of $5,000 with a mandatory $50 assessment.
Pursuant to 28 U.S.C. § 1291, Watch invokes the jurisdiction
of this Court and argues that because the district court did not
adequately advise him regarding the consequences of his guilty
plea, a core concern of Rule 11 of the Federal Rules of Criminal
Procedure was not satisfied and his conviction should therefore be
vacated. Watch also appeals the denial by the district court of
his motion to suppress and claims that he was not afforded
effective assistance of counsel.
II.
A.
Watch argues that his conviction must be vacated because the
district court violated Rule 11(c)(1) by accepting his plea without
first properly informing him as to the mandatory minimum penalty
provided by law for the offense with which he was charged. Fed. R.
Crim. P. 11(c)(1). Rule 11 provides in pertinent part as follows:
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 following: . . . the mandatory
minimum penalty provided by law, if any, and the maximum
penalty provided by law....
Fed. R. Crim. P. 11(c)(1).
At the plea hearing, after a series of questions from Watch
concerning the sentence applicable to the charge contained in the
superseding information and the potential effects the presentence
report might have on that sentence, the following colloquy took
place:
4

THE COURT: Well, if I understand correctly, -- and these
attorneys can correct me if I -- if I'm wrong -- the
allegation in the Indictment was that you possessed with
intent to distribute or in some manner trafficked in --
in more than 50 kilograms [sic]. And if that's the case,
then the minimum possible punishment is ten years -- is
it 10 to 40, Mr. Johnston [prosecutor], or --
MR. JOHNSTON: Your Honor, the way it was originally
drafted they were looking at a minimum of ten and up to
life and it could have actually been enhanced with a
prior conviction of 20 years to life, we understand. And
rather than expose them to that, the nature of the plea
agreement is, then, it dropped it back down to where it's
zero and a statutory maximum of 20.
. . . .
THE COURT: All right. Mr. Watch, I don't know if that
answers your question or not. Does it?
DEFENDANT WATCH: Pretty much so.
THE COURT: Well, I don't want you to be pretty much
satisfied that you understand, I want you to be
completely satisfied that you understand.
(Hushed conversation between Defendant Watch and Counsel
for Defendant Watch).
DEFENDANT WATCH: Yes, I understand.
Supp. Record on Appeal, vol. III, at 18-19. The district court
then found, inter alia, that Watch fully understood the "charge and
penalties" and accepted Watch's guilty plea. Supp. Record on
Appeal, vol. III, at 20-21.
21 U.S.C. § 841(b)(1)(A) provides that violations of § 841(a)
involving fifty grams or more of cocaine base are punishable by a
term of imprisonment which may not be less than ten years or more
than life. Section 841(b)(1)(C) provides that violations of
§ 841(a) involving less than five grams of cocaine base are
punishable by a term of imprisonment of up to twenty years. It is
5

clear from the record, and the government concedes, that in
entering into the plea agreement with Watch and filing the
superseding information, the parties were attempting to avoid the
application of the statutory minimum sentence provided for in 21
U.S.C. § 841(b)(1)(A) and instead have the district court apply as
a "default" the less severe § 841(b)(1)(C). The most glaring
indications of this attempt are: (1) the fact that the superseding
information did not allege the quantity of cocaine base involved in
the offense although the indictment originally entered against
Watch alleged that he had possessed at least fifty grams of cocaine
base; and (2) the contention of Assistant United States Attorney
Johnston at the plea hearing that under the superseding information
Watch was subject only to the penalty range prescribed in §
841(b)(1)(C). As a result of this agreement between the parties
and the acquiescence of the district judge to the representations
of Johnston, Watch was advised at the plea hearing that in pleading
guilty to the superseding information he could be sentenced to a
term of imprisonment of between zero and twenty years. He was not
advised that he would be subject to a mandatory minimum of ten
years if the amount of cocaine base involved was found at
sentencing to exceed fifty grams.
In determining whether the district court correctly informed
Watch of the penalty range he faced under § 841(b), this Court is
presented with the question of how, in Guidelines cases, the
absence from an indictment or information of an allegation of a
specific quantity of drugs affects the application of the quantity-
6

based minimum sentences provided for in § 841(b). It is well
established in this circuit that quantity is not an element of the
offenses proscribed by § 841(a) and is relevant only at sentencing
under § 841(b).4 See United States v. Anderson, 987 F.2d 251 (5th
Cir. 1993); ; United States v. Royal, 972 F.2d 643 (5th Cir. 1992);
United States v. Morgan, 835 F.2d 79 (5th Cir. 1987).
Consequently, quantity need not be finally determined until the
sentencing hearing when the district judge, applying a
preponderance of the evidence standard, determines the quantity of
drugs involved in the offense and applies the Guidelines
accordingly.
An examination of the Guidelines makes clear that the
statutory minimum terms of imprisonment found in § 841(b) are
incorporated therein. In this case, for example, the district
court determined that 71.6 grams of cocaine base were involved in
the offense to which Watch pleaded guilty. The Drug Quantity Table
found in the Guidelines provides that offenses involving at least
50 grams but less than 150 grams of cocaine base receive a base
4While it is not necessary to allege a specific quantity of
drugs prior to sentencing, in United States v. Anderson, 987 F.2d
251, 257 (5th Cir. 1993), we found that due process requires that
a defendant receive adequate notice of the possibility that his
sentence will be based on quantity. At the plea hearing, the
district court did allude to the application of the Guidelines to
this case, but the record is unclear regarding Watch's
understanding of what effect the absence of a specified quantity
of drugs in the superseding information had on the use of
quantity in determining his sentence. While it appears that
Watch may have received inadequate notice of the possibility that
his sentence would be based on quantity such that he could
prepare to contest the government's evidence regarding quantity,
neither Watch nor the government address this issue on appeal.
7

offense level of 32. United States Sentencing Commission,
Guidelines Manual, § 2D1.1(c)(6) (Nov. 1992) [hereinafter
U.S.S.G.]. Under the Guidelines Sentencing Table, the minimum term
of imprisonment for an offense level of 32 is 121 months. As set
forth previously, § 841(b) provides that an offense under § 841(a)
involving fifty grams or more of cocaine base is punishable by at
least ten years imprisonment (120 months). Section 841(b)(1)(B)
provides that offenses involving five grams or more of cocaine base
are punishable by at least five years (60 months) imprisonment.
Under the Guidelines, the minimum term of imprisonment for an
offense involving five grams of cocaine base is 63 months.
U.S.S.G. § 2D1.1(c)(9) and Sentencing Table.
The intention of the United States Sentencing Commission to
wholly incorporate statutory minimum penalties into the Guidelines
is further evidenced by the inclusion by the Commission of the
following language reconciling the penalties provided by statute
with those set forth in the Guidelines:
Sentencing on a Single Count of Conviction
(a) Where the statutorily authorized maximum sentence is
less than the minimum of the applicable guideline range,
the statutorily authorized maximum sentence shall be the
guideline sentence.
(b) Where the statutorily required minimum sentence is
greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be
the guideline sentence.
(c) In any other case, the sentence may be imposed at any
point within the applicable guideline range, provided
that the sentence --
(1) is not greater than the statutorily authorized
maximum sentence, and
8

(2) is not less than any statutorily required
minimum sentence.
U.S.S.G. § 5G1.1. Because statutory minimum sentences are
incorporated in the quantity-based Guidelines, the government is
prevented from avoiding application of the statutory minimum
sentences prescribed in §§ 841(b)(1)(A) and (B) by simply failing
to include a quantity allegation in an indictment or information in
hopes of having the less severe penalty range of § 841(b)(1)(C)
applied by default. The failure to include a quantity allegation
in an indictment or information has no effect whatsoever on the
determination of the appropriate sentence under the Guidelines.
In view of the foregoing, it is clear that the district court,
through acquiescence to the statements of Assistant United States
Attorney Johnston, incorrectly informed Watch that he was subject
only to a term of imprisonment between "zero and a statutory
maximum of 20 [years]." Supp. Record on Appeal, vol. III, at 19.
At the time of Watch's guilty plea, he was not guaranteed
application of the sentence range provided for in § 841(b)(1)(C),
as represented by the government and accepted by the district
court, because the quantity of drugs involved in the offense had
yet to be determined. While the district court was not required to
calculate and explain the applicable sentence under the Guidelines
before accepting Watch's guilty plea, see United States v. White,
912 F.2d 754, 756 (5th Cir. 1990), cert. denied, 111 S.Ct. 529
(1990), we find that the district court was required to inform
Watch of any possible statutorily required minimum sentences he
might face as a result of application of the quantity-based
9

Guidelines. Watch was well aware that the indictment originally
entered against him alleged that he possessed at least fifty grams
of cocaine base. The plea colloquy cited herein indicates that
Watch was informed, and apparently believed, that because the
government failed to allege a specific quantity, he was subject
only to a penalty range which included no minimum term of
imprisonment. Because the district court did not inform Watch
that, depending on the outcome of the pending quantity
determination, he might be subject to certain statutorily required
minimum sentences, the district court failed to satisfy the
requirements of Rule 11(c)(1) of the Federal Rules of Criminal
Procedure and therefore clearly erred when it found that Watch was
fully advised of the consequences of his plea.5
We recently addressed the issue of Rule 11 violations in
United States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc). In
that case, we concluded that section (h) of Rule 11 of the Federal
Rules of Criminal Procedure, which was added to that Rule with the
1983 amendments, prescribed that a harmless error analysis be
applied to all situations implicating Rule 11. Rule 11(h) provides
that "[a]ny variance from the procedures required by this rule
which does not affect substantial rights shall be disregarded."
5On appeal, Watch argues only that the district court erred
in not informing him of the applicability of statutorily required
minimum sentences for the charges against him. While the
district court also failed to accurately inform Watch of the
applicability of statutory maximum sentences other than the
twenty year maximum contained in § 841(b)(1)(C), that error has
not been raised on appeal.
10

Fed. R. Crim. P. 11(h). In doing so, we overruled our prior
approach of applying the harmless error analysis only when the
failure to comply with one or more of the three "core concerns"6 of
Rule 11 was merely a partial failure. See Bachynsky, 934 F.2d at
1354 (holding that when a district court addresses a core concern
inadequately, the plea colloquy should be reviewed under the
harmless error standard). Until the Johnson decision, this Court
required automatic reversal and vacatur when a district court
completely failed to address one or more of the "core concerns" of
Rule 11. See United States v. Martirosian, 967 F.2d 1036, 1039
(5th Cir. 1992) (holding that "the failure to advise Martirosian of
the minimum mandatory sentence was a complete failure to address a
Rule 11 core concern, mandating that the plea be set aside");
overruled by United States v. Johnson, 1 F.3d 296 (5th Cir. 1993)
(en banc).
The holding of Johnson makes clear the analysis which should
now be applied when a trial court fails to address or only
partially addresses one or more of the "core concerns" of Rule 11.
Henceforth, no failure in the plea colloquy--regardless
of whether it might be one of omission or commission,
total or partial, core or non-core--will mandate an
automatic reversal of a conviction and vacatur of a
6These core concerns are: (1) whether the guilty plea was
coerced; (2) whether the defendant understands the nature of the
charges; and (3) whether the defendant understands the
consequences of his plea. See United States v. Bachynsky, 934
F.2d 1349, 1354 (5th Cir.) (en banc), cert. denied, 112 S. Ct.
402 (1991), overruled by United States v. Johnson, 2 F.3d 296
(5th Cir. 1993) (en banc); United States v. Bernal, 861 F.2d 434,
436 (5th Cir. 1988), cert. denied, 493 U.S. 872 (1989); United
States v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979) (en banc),
cert. denied, 445 U.S. 904 (1980).
11

sentence. Rather, reversal and vacatur will be required
when--but only when--the challenged "variance from the
procedures required by [Rule 11] . . . affect[s]
substantial rights" of the defendant. In other words,
when an appellant claims that a district court has failed
to comply with Rule 11, we shall conduct a
straightforward, two-question "harmless error" analysis:
(1) Did the sentencing court in fact vary from the
procedures required by Rule 11, and (2) if so, did such
variance affect substantial rights of the defendant?
Johnson, 1 F.3d at 298 (quoting Fed. R. Crim P. 11(h)). Applying
the standard set forth above, we conclude that the district court
clearly erred when it failed to advise the Defendant that he might
be subject to certain statutorily required minimum sentences, and
that such error misled Watch as to the statutory minimum term of
imprisonment to which he subjected himself by pleading guilty and
thereby amounted to a complete failure to address the plea-
consequences concern of Rule 11. Furthermore, we find that because
the district court failed to inform Watch of the minimum sentence
which might be imposed, Watch did not fully understand the
consequences of his plea, and his rights were therefore
substantially affected. Consequently, Watch's conviction must be
vacated, and his case remanded so that he may plead anew. See
Scott, 987 F.2d at 266 (vacating and remanding to allow defendant
to replead).
The practical consequence of this determination is that a
prudent district judge hearing a plea from a defendant charged
under an indictment or information alleging a § 841(a) violation
but containing no quantity allegation may simply walk a defendant
through the statutory minimum sentences prescribed in § 841(b)
explaining that a mandatory minimum may be applicable and that the
12

sentence will be based on the quantity of drugs found to have been
involved in the offense with which the defendant is charged.
B.
In his second ground of error, Watch challenges the order of
the district court denying his motion to suppress evidence seized
during a search of his car. Having found that Watch's conviction
should be vacated, the order of the district court denying Watch's
motion lacks the requisite finality for consideration by this Court
under 28 U.S.C. § 1291. Accordingly, Watch's appeal of the order
of the district court is dismissed for want of jurisdiction.
C.
As his final ground of error, Watch argues that he has been
denied his right to effective assistance of counsel guaranteed by
the Sixth and Fourteenth Amendments and that as a result thereof
his conviction should be vacated. Because we have found that the
failure of the district court to satisfy the core concerns of Rule
11 of the Federal Rules of Criminal Procedure was not harmless
error and warrants a ruling that Watch's conviction be vacated,
Watch's ineffective assistance of counsel claim is rendered moot.
Moreover, we find that the record in this case is insufficient to
overcome the general rule that a claim of ineffective assistance of
counsel cannot be resolved on direct appeal unless it has first
been raised before the district court. See United States v.
Bounds, 943 F.2d 541, 544 (5th Cir. 1991); United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075,
108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988); United States v. McClure,
13

786 F.2d 1286, 1291 (5th Cir. 1986); United States v. Freeze, 707
F.2d 132, 138-39 (5th Cir. 1983). Accordingly, we decline to
address the merits of Watch's ineffective assistance claim and
dismiss this portion of the appeal without prejudice.
III.
For the foregoing reasons, we VACATE Watch's conviction and
remand to the district court so that Watch may have an opportunity
to replead.
14