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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.

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 on 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 crosses 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 for committing offenses while on release
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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 months 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 receive 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 open 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
circumstances, 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 circuit has found that Rule 11 addresses three core
concerns: 1) whether the guilty plea was coerced, 2) whether the
defendant understands the nature of the charges, 3) whether the
defendant understands the consequences of his plea. United 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 his
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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 further 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 government 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 United 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 to
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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 government 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 of 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 § 3147
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enhancement yielded a sentence less that the statutory maximum for
the underlying offense, a maximum of which Pierce was apprised at
the 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 statutory
maximum penalty for the offense would be. United 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
failure 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 case. 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 failed to fully inform the
defendant of the possible consequences of his plea. Failing to
advise Pierce of the maximum sentence was a complete failure to
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address a Rule 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.
c:opin:92-4232.es
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