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1 Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 92-2698 & 92-2699
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LEONARD E. SZUCKO,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-78-58-1 & CR-H-78-161)
_____________________________________________________
(November 3, 1993)
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:1
In issue is whether the district court erred in accepting
Leonard E. Szucko's guilty pleas, in applying the Sentencing
Guidelines to one of the offenses, in not departing downward for
acceptance of responsibility, and in relying on the information in

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2 Szucko also raises, for the first time on this appeal, an
ineffective assistance of counsel claim, based on counsel advising
him to enter the plea to the first indictment and not advising the
court that it had erred in accepting the plea to the second
indictment. Under most circumstances, a claim of ineffective
assistance of counsel "cannot be resolved on direct appeal when the
claim has not been raised before the district court," because "no
opportunity existed to develop the record on the merits of the
allegations." United States v. Higdon, 832 F.2d 312, 313-14 (5th
Cir. 1987), cert. denied, 484 U.S. 1075 (1988). Accordingly, we
decline to address this issue, without prejudice to it being raised
in a 28 U.S.C. § 2255 proceeding. Id. (citing United States v.
McClure, 786 F.2d 1286, 1291 (5th Cir. 1986)).
3 The cases were consolidated on motion of the government.
4 An "Alford guilty plea" refers to one entered by a defendant
who pleads guilty "`even if he is unwilling or unable to admit his
participation in the acts constituting the crime.'" United States
v. Montoya-Camacho, 644 F.2d 480, 487 (5th Cir. 1981) (quoting
North Carolina v. Alford, 400 U.S. 25 (1970)). In accordance with
Alford, we have held that a defendant under these circumstances
nevertheless may "`voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence'", pursuant to the
requirements of Fed. R. Crim. P. 11. Id.
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the Presentence Report (PSR).2 We AFFIRM in part and VACATE and
REMAND in part.
I.
Szucko was indicted in April 1978 on six counts: count one for
mail fraud, in violation of 18 U.S.C. § 1341; counts two-five for
false statements to a federally-insured financial institution, in
violation of 18 U.S.C. § 1014; and, count six, for interstate
transportation of stolen money, in violation of 18 U.S.C. § 2314.
He failed to appear at trial. In October 1978, Szucko was indicted
for bond jumping, in violation of 18 U.S.C. § 3146. He was
declared a fugitive, and was arrested in 1992.3
At his arraignment, Szucko entered an Alford guilty plea to
all six counts of the first indictment,4 and entered a guilty plea

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to the bond jumping charge under the second. Following these
pleas, the district court sentenced Szucko in part as follows: (1)
24 months imprisonment on counts two-five (false statements), to
run concurrently to 120 months imprisonment on count six
(interstate transportation of stolen money); (2) 27 months
imprisonment for bond jumping, to run consecutive to the above
sentences, followed by three years supervised release; and (3) five
years imprisonment for count one (mail fraud), suspended for five
years probation, to run consecutive to the prison terms, and
concurrent with the supervised release term.
II.
A.
Szucko contends that the district court erred in accepting his
Alford plea to the first indictment, and in misinforming him of the
possible penalties for interstate transportation of stolen money.
We disagree with the former contention, but agree with the latter.
1.
Szucko contends that his Alford plea was not voluntary unless
he received a lesser sentence in exchange for his plea. An Alford
plea is constitutionally valid (i.e., voluntary and the result of
a knowing and intelligent choice by the defendant), so long as
there is a factual basis for the plea, and the court inquires into
the conflict between the defendant's pleading guilty, yet
maintaining innocence. North Carolina v. Alford, 400 U.S. 25, 38
n.10 (1970); United States v. Jack, 686 F.2d 226, 230 (5th Cir.
1982). The court may find the plea to have been knowing and

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intelligent, if the evidence presented substantially negates the
claim of innocence. Alford, 400 U.S. at 37-38.
The government presented a detailed factual basis supporting
Szucko's guilt, which Szucko did not challenge after having
reviewed it. Further, he explained to the court that he understood
that the government's case was a "very strong case ... it's a very
complex case, it happened a long time ago, and it's an advantage
for me to just have that end as soon as possible [] and go[] back
to my normal life." Based on the record, Szucko apparently felt
that it was advantageous to make an Alford plea even without an
accompanying reduction in his sentence. The district court did not
err in accepting the plea to counts one-five.
2.
As for the plea to count six (interstate transportation of
stolen money), the district court informed Szucko that the penalty
was a fine of not more than $5,000 or imprisonment for not more
than two years, or both. In fact, the penalty is a fine of not
more than $10,000, or imprisonment for not more than ten years, or
both. Szucko was sentenced to 120 months imprisonment for this
offense.
The district court must address a defendant in open court
before accepting a guilty plea and determine that the defendant
understands, inter alia, the nature of the charges, and any
mandatory minimum and maximum possible penalties. United States v.
Johnson, 1 F.3d 296, 299, (5th Cir. 1993) (en banc), 1993 WL 323163

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at *2-3. We review for harmless error. Id. at 301-02, 1993 WL
323163 at *3-5.
The district court's error was not harmless; the government
concedes this. It was precisely the type error that would be
likely to make Szucko underestimate significantly the sentence he
would receive after pleading guilty. See United States v. Whyte,
___ F.3d ___ (5th Cir. Sept. 21, 1993), No. 92-4150, 1993 WL 364940
at *1-2 (holding court's error in stating penalties during plea
colloquy not to be harmless). And, the record does not indicate
that Szucko was informed otherwise about the correct penalty, e.g.,
via a plea agreement. Cf. id. at *1 (vacating conviction and
sentence, and remanding, despite fact that defendant's counsel
informed him of correct sentence).
B.
Szucko also appeals the conviction and sentence he received
under 18 U.S.C. § 3146 (bond jumping), contending that he was
misinformed regarding the minimum and maximum sentences. Again, we
review for harmless error.
When the indictment issued in 1987, the applicable statute was
18 U.S.C. § 3150 (failure to appear). When Szucko was arrested,
entered his plea, and was sentenced, however, the statute in effect
was § 3146. The Guidelines apply to § 3146; they were not in
effect when Szucko was indicted under § 3150.
Szucko pleaded guilty to a violation of § 3150; and the
district court told him that the Guidelines did not apply, and that
the maximum penalty for an offense under § 3150 was a fine of not

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5 In any case, the sentence Szucko received under § 3146 was 27
months imprisonment followed by 36 months supervised release. This
exceeds five years, the statutory maximum sentence, see 18 U.S.C.
§ 3146; United States v. Garcia-Garcia, 939 F.2d 230, 232-33 (5th
Cir. 1991) (vacating sentence of 27-months imprisonment, followed
by 36-months supervised release, because it exceeded statutory
maximum of five years).
Szucko also contends that the conviction and sentence violate
the constitutional provision against ex post facto punishment,
because § 3146 provides that any prison term will run consecutive
to imprisonment for other offenses, whereas the predecessor
statute, § 3150, had no such requirement. See 18 U.S.C.A. § 3150
(1985), Historical Note; 18 U.S.C. § 3150 (Supp. 1982); 18 U.S.C.
§ 3146(b)(2) (Supp. 1993). Further, he contends that application
of the Guidelines was erroneous. We address these points to assist
the district court on remand.
The Guidelines were not in effect when Szucko was indicted
under § 3150. They may be applied, however, to a continuing
offense (i.e., one which began before the Guidelines were
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more than $5,000 or imprisonment for not more than five years, or
both. Szucko was not advised that supervised release could be
imposed. When Szucko was sentenced, however, he was sentenced
under the Guidelines, for a violation of § 3146, and given a 27-
month term of imprisonment, followed by a three-year term of
supervised release.
Rule 11 requires that a defendant be advised when the
Guidelines apply. United States v. Hekimain, 975 F.2d 1098, 1103-
04 (5th Cir. 1992). Szucko was not so advised; and again, the
information he received is likely to have caused him to
underestimate the sentence he would receive upon entering a guilty
plea. See United States v. Whyte, ___ F.3d at ___, 1993 WL 264940
at *3. The government again concedes, and we agree, that the error
in misinforming Szucko as to the possible penalties and the
applicability of the Guidelines was not harmless.5

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applicable, but was concluded after the Guidelines went into
effect). United States v. White, 869 F.2d 822, 826 (5th Cir.
1989), cert. denied, 490 U.S. 1112 (1990). We have held that bond
jumping is a continuous offense, and certain other circuits agree.
United States v. Saenz, No. 91-2043 (5th Cir. August 13, 1991)
(unpublished) (offense of failure to appear continues from time of
initial failure to appear until fugitive is in custody); see also
United States v. Gray, 876 F.2d 1411, 1418-19 (9th Cir. 1989) (bond
jumping is continuing offense; Guidelines § 1B1.1 requires their
application where defendant was arrested after their effective date
(Nov. 1, 1987)), cert. denied, 495 U.S. 930 (1990); United States
v. Lopez, 961 F.2d 1058, 1060 (2d Cir. 1992) (same).
As Szucko points out, however, we have also, in a similar
case, applied the version of the bond-jumping statute in effect
when the offense began, rather than the one in effect either when
the indictment issued or the fugitive was taken into custody.
United States v. Iddeen, 854 F.2d 52 (5th Cir. 1988) (defendant
jumped bail November 1987, before amendments to § 3146; amendments
to § 3146 took effect December 1987; then indictment issued, and
defendant was later arrested; defendant was sentenced under pre-
amendment version of § 3146). We need not resolve at present the
tension between Saenz and Iddeen.
For the bond-jumping offense, Szucko also contests the
district court's not departing downward for acceptance of
responsibility. Because we vacate the conviction and sentence on
this charge, we need not reach this issue. Similarly, we need not
decide Szucko's last issue -- whether the district court improperly
relied on information in the PSR.
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III.
For the foregoing reasons, Szucko's sentences and convictions
for mail fraud and making false statements to a federally-insured
financial institution (counts one-five of the first indictment) are
AFFIRMED. His convictions and sentences for interstate
transportation of stolen money and bond jumping are VACATED, and
this matter is remanded for further proceedings.
AFFIRMED in part and VACATED and REMANDED in part

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