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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-8278
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOE BRENT HERNDON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(October 27, 1993)
Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges:
PER CURIAM:
Joe Brent Herndon ("Herndon") pleaded guilty, pursuant to a
written plea agreement, to one count of manufacturing marijuana in
violation of 21 U.S.C. § 841(a)(1).1 Nothing in the written plea
agreement speaks to whether conviction under Count one would carry
a mandatory minimum sentence or of the maximum possible penalty
provided by law for conviction under Count one. Likewise nothing
in the written plea agreement indicates the guideline range which
1Count One of the indictment reads as follows: "Beginning in or about July, 1991 and
continuing until August 5, 1991, in Hays County in the Western District of Texas and elsewhere,
the Defendant, JOE BRENT HERNDON, unlawfully and knowingly manufactured marijuana, a Schedule
I Controlled Substance, contrary to Title 21, United States Code, Section 841(a)(1)."

might be applicable to Count one. In addition to the written plea
agreement, the government prepared a statement of factual basis
which Herndon and his counsel co-signed, evidencing that they had
read the factual basis and that the "allegations contained in the
factual basis are true and correct." Two of the sentences in the
factual basis read as follows:
"The officers later executed a search warrant
at the house. The search revealed no less
than fifty (50) growing marijuana plants,
ranging in size from one foot to nine feet
tall." (emphasis added)
The underlined words are the essence of ambiguity because logically
they constitute an agreement only as to what was not found, (i.e.,
any number of marijuana plants beginning with 49 and going down to
zero); and leave open entirely the number which was actually found.
Early on in Herndon's Rule 11 colloquy, this ambiguity surfaced
when defense counsel indicated that there was a dispute as to the
number of plants and that it was defendant's position, "that there
were 50 or less plants." Immediately thereafter, the following
dialogue appears in the Rule 11 transcript:
THE COURT:
My recollection of
your
statement or the summary of the evidence was
that it says no less than fifty marijuana
plants.
MR. PITTMAN [prosecutor]:
That's correct,
Your Honor. That's what's in the signed
factual basis in the case.
THE COURT:
So, I suppose there could be
fifty based upon that.
2

MR. SPIVEY [defense counsel]: T h a t ' s m y
understanding.

THE COURT:
All right. And that's -- you
agree with that summary then?
MR. HERNDON [the defendant]:
Yes, sir, I do.
Later on, the trial judge advised the defendant that, "the
maximum possible penalty under Count one is twenty years of
imprisonment and a fine of $1,000,000." The defendant acknowledged
that he understood that. At no other point in the Rule 11 hearing
did the trial judge advise Herndon as to any mandatory minimum
sentence which might be applicable to Count one, nor is there any
dialogue in the Rule 11 transcript which mentions or discusses any
possible guideline range or guideline sentence which might be
applicable to Count one.
Following the Rule 11 hearing which occurred on November 12,
1992, the probation officer prepared his pre-sentence investigation
report ("PSR") dated December 10, 1992. In his PSR, the probation
officer recognized that Herndon was "adamant in his claim that
there were less than 50 growing marijuana plants involved"; but,
the probation officer relied upon the reports of the arresting
officers that 110 plants had been seized at the time of Herndon's
arrest. Relying upon the text at the end of the "Drug Quantity
Table" (U.S.S.G. § 2D1.1(c)) instructing that when 50 or more
marijuana plants are involved in the offense, "treat each plant as
equivalent to one kilogram of marijuana," the probation officer
came up with a base offense level of 26; and added a two-level
3

increase for the firearms which were seized in the house which
Herndon was occupying. The resulting level of 28 produced a
guideline range of confinement between 78 and 97 months, since
Herndon had no criminal history points which would move his
sentence to a higher level. The probation officer cited as
statutory provisions in paragraph 58 of the PSR that the
controlling statutory provision was 21 U.S.C. § 841(b)(1)(C).
However, if in truth and in fact 110 plants of marijuana are
involved, the correct statutory authority for punishment of this
offense would be Section 841(b)(1)(B)(vii) which applies to "100 or
more marijuana plants" and provides for a minimum sentence of not
less than 5 years and a maximum sentence of not more than 40 years.
Consequently, the advice which the trial judge gave to the
defendant at the time of his Rule 11 colloquy was incorrect in that
the trial judge advised Herndon of a potential 20 year maximum,
when in fact the maximum would be 40 years, and he failed
completely to advise Herndon of the 5 year minimum sentence.
The government concedes in its brief that these mistakes and
omissions by the trial court were errors under the requirements of
Rule 11(c) Fed. R. Crim. P.; and that the determinative question on
this appeal is whether or not such errors were "harmless" within
the meaning of Rule 11(h) Fed. R. Crim. P. as required by the en
banc holding of this Court in United States v. Johnson, 1 F.3d 296
(5th Cir. 1993)(en banc).
In making such harmless error determination, we utilize the
following principles as described in Johnson.
4

A.
The determination of harmless error is a fact sensitive
inquiry and the results will depend upon the particular
facts of each individual case; Id. at 302.
B.
Application of the harmless error analysis should not
result in "nullifying important Rule 11 safeguards"; and
the kinds of Rule 11 violations which might be found to
constitute harmless error on direct appeal "are fairly
limited." Id. (quoting Advisory Committee notes to Rule
11).
C.
In assessing harmlessness, we must resolve the issue
"solely on the basis of the Rule 11 transcript and the
other portions (e.g., sentencing hearing) of the limited
record made in such cases"; but in considering
"documentation that itself post-dates the plea hearing
(such as the pre-sentence investigation report,
objections thereto by the defendant and the transcript of
the sentencing hearing), we will consider only those
temporally relevant matters that are revealed in the
record." Id.
D.
The ultimate determination of harmlessness is "whether
the error affects substantial rights"; and in making that
determination, "we focus on whether his knowledge and
comprehension of the full and correct information would
have been likely to affect [the defendant's] willingness
to plead guilty." Id.
5

Applying these principles from Johnson to the circumstances of
this case, we have no difficulty in concluding that the failure of
the trial judge to "inform the defendant of and determine that the
defendant understands...the mandatory minimum penalty provided by
law" as required by Rule 11(c) was not harmless in this case. We
arrive at that conclusion for the following reasons:
I.
As mandated by Johnson, we have searched: (i) the
transcript of the Rule 11 hearing, (ii) the plea agreement,
(iii) the statement of factual basis, (iv) the presentence
investigation report and objections thereto by the defendant,
and (v) the transcript of the sentencing hearing; and have not
been able to find any basis upon which we could reasonably
conclude that the defendant was "aware of and understood" that
there was a five (5) year minimum statutory sentence
applicable to the count to which he was pleading guilty.
This distinguishes this case from the circumstances in
Johnson itself, where the transcript of the Rule 11 colloquy
clearly showed that Johnson was aware that the probable
guideline sentence resulting from his conviction would have a
minimum range of twenty (20) years, even though the trial
court had failed to inform him of a mandatory statutory
minimum of one (1) year applicable to one of the counts of
which he was pleading guilty.
II.
It is apparent from our review of the record in this case
6

that there was controversy from the very beginning as to the
ambiguous language in the statement of factual basis that "no
less than fifty (50) growing marijuana plants" were involved
in the charge. In our view, this ambiguity caused the trial
judge to select the wrong subsection of 21 U.S.C. § 841(b) for
the purpose of advising the defendant as to statutory minimums
and maximums.2
Given that the original offense report in this case
indicated that, "One hundred and Ten (110) growing marijuana
plants" were taken into custody in this case, we are puzzled
as to why the prosecution resorted to the ambiguous language
which it used in the statement of factual basis, rather than
specifying the particular number of plants indicated in the
offense report, and then stood by silently at the Rule 11
hearing when the judge effectively construed the statement of
factual basis as involving "Fifty (50) plants," and used that
determination to select the penalty provision under § 841(b).
We take this occasion to urge the prosecutor and defense
counsel to use the written plea agreement, and the statement
of factual basis, for the purpose of clarifying rather than
obfuscating the consequences of the charge to which the
defendant intends to plead guilty.
2As noted by the government in its brief, Section 841(b) of Title 21, United States Code,
sets forth four ranges of imprisonment for violations of § 841(a) involving marijuana: (1) if
less than 50 kilograms or 50 plants regardless of weight, the penalty is a term of imprisonment
up to five years (§ 841(b)(1)(D)); (2) if 50 or more, but less than 100 kilograms or plants,
the term of imprisonment is up to 20 years (§ 841(b)(1)(C)); (3) if 100 or more, but less than
1000 kilograms or plants, the term of imprisonment is at least five years up to a maximum of
40 years (§ 841(b)(1)(B)); and (4) if 1000 or more kilograms or plants, the term of imprisonment
is at least ten years up to life (§ 841(b)(1)(A)).
7

While we agree with the government's argument in this
case that neither allegation nor proof of drug quantities is
essential to conviction under § 841(a), there is absolutely no
way to properly determine statutory minimum and maximum
penalties under § 841(b) without appropriate knowledge as to
the quantities involved. If the government chooses to play
"hide the thimble" regarding drug quantities, as it did in
this case, then we think it incumbent on the prosecution at
the Rule 11 hearing to request the trial judge to advise the
defendant as to all of the possible minimums and maximums of
punishment under § 841(b) which could possibly be applicable
as a result of appropriate determination of quantities using
relevant conduct under the guidelines.
III.
Finally, where the minimum mandatory sentence, of which
the defendant was not informed, constitutes a substantial
portion of the actual sentence ultimately determined to be
applicable under the guidelines, we think there is a
significant possibility that awareness of such minimum would
have affected the defendant's decision to plead guilty. First
of all, a statutory minimum necessarily colors the evaluation
by a defendant and his counsel of his potential sentence,
because it inherently sets a minimum below which a sentence
determined by the guidelines cannot go. More significantly,
in drug cases, such as this one, awareness of a statutory
minimum will, in and of itself, inform a defendant as to the
8

gross ranges of drug quantities which the government contends
may be involved; and if those quantities are in dispute, as
they were here, a defendant might well conclude that rather
than pleading guilty and facing a sentence based on a quantity
which he disputes, he would just as soon have his day in court
under a "not guilty" plea with a chance of getting off
entirely. Other panels of this court have expressed similar
sensitivity to the error of non-disclosure or mis-disclosure
of mandatory minimums. See U.S. v. Martirosain, 967 F.2d 1036
(5th Cir. 1992); and U.S. v. Whyte, No. 92-4150, 1993 U.S.
App. LEXIS 24169 (5th Cir. Sept. 21, 1993).
The government argues two theories on which we should conclude
that the Rule 11 errors in this case were harmless. First, the
government contends that "on the facts of the instant case, the
mandatory minimum penalty provided by statute had no effect on
appellant's sentence." Whether the mandatory minimum had an effect
on the sentence is not the question, however. The question is
whether awareness of a mandatory minimum would have affected the
defendant's decision to plead guilty.
Secondly, the government cites several instances in the record
which the government contends show that appellant "repeatedly
persisted in his guilty plea and declined the district court's
offer to withdraw the plea." We have reviewed each of these cited
instances and decline to so interpret them. All of these instances
occurred during the sentencing hearing, not the Rule 11 hearing,
9

and none of the instances constitute any indication of what the
defendant was "aware of or understood" regarding the existence of
a statutory minimum sentence as of the "temporally relevant" time,
i.e., the Rule 11 hearing. Finally, none of the instances rise to
the dignity of an occasion on which the defendant "knowingly and
intelligently" waived the failure of the trial judge to comply with
Rule 11(c).
For the foregoing reasons, we VACATE the conviction and
sentence, and REMAND the case to the trial court for re-pleading.
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