United States of America v. Reginald Charles Rose, Iii

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0045P (6th Cir.)
File Name: 04a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGINALD CHARLES ROSE,
III,
Defendant-Appellant.
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No. 02-5163
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00061—Curtis L. Collier, District Judge.
Submitted: September 9, 2003
Decided and Filed: February 11, 2004
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
2 United States v. Rose No. 02-5163
_________________
COUNSEL
ON BRIEF: Anthony Martinez, FEDERAL DEFENDER
SERVICES OF EASTERN TENNESSEE, INC.,
Chattanooga, Tennessee, for Appellant. Reginald Rose, III,
Montgomery, Alabama, pro se.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. The
Defendant-Appellant, Reginald Charles Rose, III (“Rose”),
appeals his convictions and sentence. Rose was convicted of
conspiring to distribute fifty grams or more of
methamphetamine mixture, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(B), and of knowingly and intentionally
carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro
se brief, Rose raises several claims of error in the district
court’s acceptance of his guilty pleas. Most of these errors
arise from discrepancies between the descriptions of the
charges in Counts One and Three as stated in the Superseding
Indictment and as stated in his written plea agreement.
Rose’s court-appointed counsel also filed an appellate brief
and a motion to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967), stating that he has found no meritorious
grounds for appeal but nonetheless raising two possible
claims of error in the calculation of Rose’s sentence.
For the reasons set forth below, we VACATE Rose’s
conviction and sentence as to Count One and REMAND for
proceedings consistent with this opinion.

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No. 02-5163 United States v. Rose 3
I. JURISDICTION
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231 because Rose was charged with offenses against the
laws of the United States. This court has jurisdiction over the
appeal under 28 U.S.C. § 1291 because Rose is appealing a
conviction imposed by the district court.
II. BACKGROUND
A. Factual Background
The facts of this case are not in dispute. “In March 2001,
agents with the Tennessee Bureau of Investigation (“TBI”)
received information from a confidential informant (“CI”)
that” Rose could deliver methamphetamine. Presentence
Report (“PSR”) at 5. The CI arranged to purchase one pound
of methamphetamine from Rose and to have it delivered to a
residence in Meigs County, Tennessee. On March 19, 2001,
the CI and an undercover TBI agent met Rose at that
residence; additional TBI agents monitored the transaction.
Ralph Vasquez (“Vasquez”), a co-defendant, accompanied
Rose to the residence. Previously, in Dalton, Georgia, Eric
Estrada (“Estrada”) had “fronted” the methamphetamine that
Rose was to deliver to the CI. Estrada had sent his associate,
Vasquez, along with Rose on the March 19, 2001 transaction
to ensure that Estrada received payment.
At the residence in Meigs County, Rose and Vasquez
negotiated to sell an additional two pounds of
methamphetamine to the CI. Rose and Vasquez told the CI
that they would deliver this additional methamphetamine for
$20,000 at a later date. Rose and Vasquez then delivered the
original one pound of methamphetamine in exchange for
$11,500. Immediately thereafter, TBI agents arrested Rose
and Vasquez. When the TBI agents searched the car that
Rose and Vasquez used to travel to Meigs County, they found
a loaded Colt .45 in plain view.
4 United States v. Rose No. 02-5163
B. Procedural Background
On April 11, 2001, Rose, Vasquez, and Estrada were
charged in a three-count Indictment. On May 22, 2001, a
Superseding Indictment named an additional three co-
conspirators. In Count One of the Superseding Indictment,
Rose and all five co-conspirators were charged with
conspiring to distribute five hundred grams or more of a
mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A). In Count Two, Rose, Vasquez,
and Estrada were charged with distributing fifty grams or
more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. In Count Three,
Rose, Vasquez, and Estrada were charged with knowingly
and intentionally carrying a firearm during and in relation to
the drug trafficking offenses set out in Counts One and Two,
in violation of 18 U.S.C. §§ 2 and 924(c).
On September 6, 2001, Rose pleaded guilty to Counts One
and Three pursuant to a written plea agreement. A sentencing
hearing was held on January 4, 2002, and a judgment was
entered that same day, dismissing Count Two on the
government’s motion. There are discrepancies between the
descriptions of the charges in Counts One and Three as stated
in the Superseding Indictment and as stated in the plea
agreement.
On January 10, 2002, Rose filed a timely notice of appeal
from the district court’s judgment. On July 19, 2002, Rose’s
court-appointed counsel, Anthony Martinez, filed an Anders
brief and a motion to withdraw. In his Anders brief, Rose’s
counsel stated that after reviewing the entire record, he was of
the opinion that there were no meritorious grounds for an
appeal. Nonetheless, in his Anders brief, Rose’s counsel
raised the issues of whether the district court erred by
including the additional two pounds of methamphetamine
when determining Rose’s offense level and whether the

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No. 02-5163 United States v. Rose 5
1The first issue, regarding the district court’s inclusion of the
add itional two pound s of methamp hetam ine when determining Rose’s
base offense level, is analyzed more fully in United States v. Vasquez, 352
F.3d 1067 (6th C ir. 200 3), affirming the sentence of Ro se’s co-defendant,
Vasquez.
The second issue , regard ing the district court’s grant of a three-level
downward departure for the government’s 5K 1.1 motion, is meritless and
easily disposed of because we have held that a defendant cannot appeal
the degree of a district court’s downward departure for substantial
cooperation, so long as the district court remained within the sentencing
guidelines. Un ited States v. Gregory, 932 F.2d 116 7, 11 69 (6th Cir
1991).
2It is not clear whether Rose raises these as two distinct claims of
error, but we will treat them as such. On page four of his brief, Rose
states, “The Court never had jurisdiction to sentence as the charges
presented to the Court were different than the charges brought in the
indictm ent.” App ellant’s Br. at 4. Then, on page five of his brief, Rose
states, “In order to be able to make an informed decision on the plea
agreement, Rose would have had to know that he was no t plead ing guilty
to the charges in the indictment, rendering the plea moot.” Id.
3Again, it is not clear whether Rose is complaining about the
sufficiency of the evidence to sup port his conviction, or about the
sufficiency of the Superseding Indictment. Appellant’s Br. at 4. On page
four of his brief, Rose claims the “cha rge can not stand on its merit,”
which seems to allege that the evidence was insufficient to supp ort his
conviction. Appellant’s Br. at 4. On that same page, Ro se also claims the
district court erred as to the extent of the downward departure
in Rose’s sentence on the government’s 5K1.1 motion.1
On August 29, 2002, Rose filed a pro se response to his
counsel’s Anders brief. In his response, Rose raises the
following three claims of error: (1) that the district court
conducted Rose’s plea hearing in a manner that violated
Federal Rule of Criminal Procedure 11 (“Rule 11") and that
the district court did not have jurisdiction to accept a plea to
an offense that was not charged in the Superseding
Indictment;2 (2) that there was insufficient evidence to
support Rose’s conviction for carrying a firearm during and
in relation to a drug trafficking offense;3 and (3) the
6 United States v. Rose No. 02-5163
charge was no t “proper at indictment,” which seems to allege that the
Supersed ing Indictment was insufficient. Id.
additional two pounds of methamphetamine that Rose and
Vasquez agreed to deliver should not have been considered in
calculating Rose’s sentence. The government has not filed an
appellate brief in this case.
The extensive and rather complicated procedural history
will be set out in more detail below as it pertains to each of
the issues.
III. ANALYSIS
A. District Court’s Compliance With Rule 11 for Count
One
1. Factual Background
The description of the charge in Count One in the plea
agreement differs from that in the Superseding Indictment. In
the Superseding Indictment, Count One states:
REGINALD CHARLES ROSE, III, and others unknown
to the Grand Jury, did combine, conspire, confederate,
and agree to knowingly, intentionally, and without
authority violate Title 21, United States Code, Sections
841(a)(1) and 841(b)(1)(A), that is, to distribute 500
grams or more of a mixture or substance containing a
detectable amount of methamphetamine, a Schedule II
controlled substance, in violation of Title 21, United
States Code, Section 846.
R. at 35 (Superseding Indictment) (emphases added). In the
plea agreement, paragraph one states:
The defendant [Rose] agrees to plead guilty to the
following counts of a Superseding Indictment filed
against him in the above-styled case:

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No. 02-5163 United States v. Rose 7
Count One charging him with a violation of Title 21,
United States Code, Section 846, i.e., attempt to
violate Title 21, United States Code, Section
841(a)(1) and 841(b)(1)(B), that is, to knowingly,
intentionally and without authority distribute fifty
(50) grams or more of a mixture or substance
c o n t a i n i n g a d e t e ct a b l e a m o u n t o f
methamphetamine, a Schedule II controlled
substance.
R. at 81 (Plea Agreement) (emphases added). The description
of the charge in Count One in the plea agreement differs from
that in the Superseding Indictment in three respects: (1) it
changes the charge from “conspiring to distribute” to
“attempting to distribute”; (2) it changes the statutory
provision from 21 U.S.C. § 841(b)(1)(A) to 21 U.S.C.
§ 841(b)(1)(B); and (3) to correspond with the changed
statutory provision, it changes the drug quantity contained in
the description of the charge from “five hundred grams or
more” to “fifty grams or more.”
At the plea hearing, the district court read the charge in
Count One as it is stated in the Superseding Indictment. In
response, Rose pleaded guilty. After Rose pleaded guilty,
Vasquez’s attorney, Mr. Brooks, pointed out that Vasquez’s
plea agreement changed the charge from a violation of
21 U.S.C. § 841(b)(1)(A), conspiring to distribute five
hundred grams or more of methamphetamine mixture, to a
violation of 21 U.S.C. § 841(b)(1)(B), the penalty for fifty
grams or more. The Assistant U.S. Attorney, Mr. Laymon,
also acknowledged the change. Rose joined in Vasquez’s
objection regarding the change. The discussion went as
follows:
MR. BROOKS [counsel for Vasquez]: Your Honor, our
plea agreement says 50 grams, rather than 500 grams,
which was the original indictment.
THE COURT: Mr. Laymon?
8 United States v. Rose No. 02-5163
MR. LAYMON [government counsel]: Judge, as to both
Mr. Rose and Mr. Vasquez, the first defendant and the
third defendant, they’re pleading guilty pursuant to their
plea agreements, which stipulate a plea to what would be
a lesser included offense, technically, I suppose, but it
would be (b)(1)(B) as opposed to (b)(1)(A). . . . [Rose
and Vasquez] would be pleading guilty to 50 grams or
more, which is the (b)(1)(B) provision.
THE COURT: So, Mr. Brooks, your client is pleading
guilty to the charge insofar as it alleges — is it 50 grams
or less, and not guilty as the charge alleges over 50
grams? Is that correct?
MR. BROOKS: Your Honor, it’s 50 grams or more but
not over 500 grams.
THE COURT: Okay. Fifty grams or more —
MR. BROOKS: That’s correct.
THE COURT: — but not over 500 grams?
MR. BROOKS: That’s correct.
THE COURT: He’s pleading not guilty to any amount
of 500 or more grams?
MR. BROOKS: That’s correct, Your Honor.
MR. MARTINEZ: Judge, on behalf of Mr. Rose, also,
Your Honor.
THE COURT: Okay.
Plea Hr’g Tr. at 14-15. Thus, at the plea hearing, the parties
and the district court discussed the discrepancies between the
Superseding Indictment and the plea agreement regarding the
statutory provisions and the drug quantities. They did not,

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No. 02-5163 United States v. Rose 9
however, discuss the substitution of the attempt language for
the conspiracy language.
Also at the plea hearing, when stating the elements that the
government would be required to prove in order to convict
Rose and Vasquez of the charges in Count One, the district
court listed the elements for conspiracy, rather than attempt.
The district court stated:
In Count 1 you [Rose and Vasquez] are charged with a
conspiracy to distribute a mixture or substance which
contained a detectable amount of methamphetamine. For
you to be found guilty of this offense, the government
would have to prove beyond a reasonable doubt the
following elements: (1) you conspired or agreed with at
least one other person to commit the crime of distributing
a mixture or substance which contained a detectable
amount of methamphetamine, and (2) you knowingly and
voluntarily joined the conspiracy.
Plea Hr’g Tr. at 16.
2. Analysis
In his pro se brief, Rose appears to contend that the district
court conducted Rose’s plea hearing in a manner that violated
Rule 11, and thus prevented him from entering a valid guilty
plea to Count One. The district court failed adequately to
inform Rose of the charges against him in Count One, failed
to determine whether Rose understood the charges against
him in Count One, and failed to ensure there was a sufficient
factual basis for the charge. Rose, however, did not
contemporaneously object to the manner in which the district
court conducted his plea hearing.
When a defendant has raised the objection below, we
review the district court’s compliance with Rule 11 for
harmless error. United States v. Syal, 963 F.2d 900, 904 (6th
Cir. 1992) (discussing the harmless error provision contained
10 United States v. Rose No. 02-5163
4W e are aware that the Sup reme Court recently granted certiorari in
United States v. Benitez, 310 F.3d 122 1 (9th Cir. 20 02), cert. granted, 72
U.S.L.W . 3121 (U.S. Dec. 8, 2003) (No. 03-167), to decide whether a
defendant, who pleaded guilty during a deficient Rule 11 proceed ing and
did not contemporaneously object to the deficiency, must prove that he
would not have pleaded guilty absent the deficiency in o rder to ob tain
reversal. W e are also aware that many of our sister circuits impose such
a requirement on defendants seeking to obtain reversal under the plain-
error standard, and some even impose it on defendants seeking to ob tain
reversal under the harmless-error standard. See, e.g., United States v.
Dixon, 308 F.3d 229 (3d Cir. 2002) (plain-error standard); United States
v. Martinez, 289 F.3d 1023 (7th Cir. 2002) (plain-error standard); United
States v. Martinez, 277 F.3d 517 (4th C ir.), cert. denied, 537 U.S. 899
(2002) (plain-error standard); United States v. Prado, 204 F.3d 843 (8th
Cir.), cert. denied, 531 U.S. 102 4 (2000 ) (harmless-error standard);
United States v. Westcott, 159 F.3d 107 (2d Cir. 19 98), cert. denied, 525
U.S. 1084 (1999) (harmless-error standard); United States v. Noriega-
Millan, 110 F.3d 162 (1st Cir. 1997) (harmless-error standard); United
States v. Lyons, 53 F.3d 1321 (D.C. Cir. 1995) (harmless-error standard);
United States v. Johnson, 1 F.3d 296 (5th C ir. 1993) (harmless-error
standard); United States v. Vaughn, 7 F.3d 1533 (10th Cir. 1993), cert.
denied, 511 U.S. 103 6 (1994 ) (harmless-error standard).
This circuit has not yet imposed on defendants, who seek to obtain
reversal of their convictions pursuant to guilty pleas based upon
deficiencies at their Rule 11 proceed ings, a requirement that they prove
that they would not have pleaded guilty absent the deficiencies, and we
decline to do so in this case. Instead, we conclude that the error that
in Rule 11(h)). An error is not harmless if the defendant’s
substantial rights were affected. Id. In the present case, Rose
did not raise below the issue of the district court’s compliance
with Rule 11. When a defendant did not contemporaneously
object to the district court’s alleged failure to comply with the
requirements of Rule 11, we review for plain error. United
States v. Vonn, 535 U.S. 55, 59 (2002). “To establish plain
error, a defendant must show (1) that an error occurred in the
district court; (2) that the error was plain, i.e., obvious or
clear; (3) that the error affected defendant’s substantial rights;
and (4) that this adverse impact seriously affected the
fairness, integrity or public reputation of the judicial
proceedings.” United States v. Koeberlein, 161 F.3d 946, 949
(6th Cir. 1998).4

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No. 02-5163 United States v. Rose 11
occurred during Rose’s Rule 11 proceed ing was so egregious that it
prevented Rose from understanding what crime he was pleading guilty to,
and thus constitutes plain erro r. We will not impose on Rose the burden
of demonstrating that he would not have pleaded guilty absent the
deficiency.
In so holding, we point out that this case is fundamentally different
from Benitez, in that the error that occurred in this case impugns the
ascertainment of Ro se’s guilt, whereas the error that occurred in Benitez
merely affected whether the defendant understood the terms of his plea
bargain. W e conclude that the error that occurred in this case falls
squarely within the requirements imposed by Fed. R. Crim. P. 52(b)
because it affected Rose’s substantial rights. Although a defendant in
order to ob tain reversal must typically sho w that the error was prejud icial,
i.e., that it “affected the outco me of the district court proceedings,” in
United States v. Olano, 507 U.S. 725, 734 -35 (1993), the Supreme C ourt
stated: “There may be a special category of forfeited errors that can be
corrected regardless of their effect on the outcome.” In Olano, the
Supreme Court further stated that a “Court of Appeals should corre ct a
plain forfeited error affecting substantial rights if the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 736. Such an error occurred in this case.
5In 2003, Rule 11 was amended and renumbered. The 2003 version
requires district courts to conduct an even more thorough inquiry into a
defendant’s understanding of the charges against her before accepting a
plea of guilty or nolo contendere. In this opinion, we cite to the 2002
version of Rule 11, which was in effect when Rose pleaded guilty. On
remand, the district court should ensure that it complies with the 2003
version of Rule 11.
W hat used to be Rule 1 1(c)(1) is no w part of Rule 11(b)(1 ). Rule
11(b)(1) now provides:
Before the court accepts a plea of guilty or nolo contendere, the
defendant may be placed under oath, and the co urt must address
the defendant perso nally in op en court. During this address, the
court must inform the defendant of, and determine that the
Rule 11 specifies the procedure that district courts must
follow when accepting a defendant’s guilty plea. Rule 11(c)
requires, inter alia, “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 nature of the charge to
which the plea is offered.” Fed. R. Crim. P. 11(c)(1).5 Rule
12 United States v. Rose No. 02-5163
defendant understands, the following:
. . .
(G) the nature of each charge to which the defendant is
pleading.
6W hat used to be R ule 11 (f) is now Rule 1 1(b)(3). N ew Rule
11(b)(3) requires: “Before entering judgment on a guilty plea, the court
must determine that there is a factual basis fo r the plea.”
11(f) requires: “Notwithstanding the acceptance of a plea of
guilty, the court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(f).6 Although
the procedure specified in Rule 11 is not constitutionally
required, the purpose of Rule 11 is “to assist the district judge
in making the constitutionally required determination that a
defendant’s guilty plea is truly voluntary. . . . [and] to produce
a complete record at the time the plea is entered of the factors
relevant to this voluntariness determination.” McCarthy v.
United States, 394 U.S. 459, 465 (1969); see also Syal, 963
F.2d at 904.
We have decided several cases in which the defendant
claimed that the district court violated Rule 11 because the
district court did not list the elements that the government
must prove beyond a reasonable doubt in order to convict the
defendant of the charges in the indictment. Compare Syal,
963 F.2d at 902-905 (holding that the district court’s failure
even to “rehearse the content of the indictment” or to list the
elements of the crime violated Rule 11); United States v.
Goldberg, 862 F.2d 101, 108-09 (6th Cir. 1988) (holding that
the district court’s failure to list the active concealment
element of the crime of misprision of a felony violated Rule
11 because that crime is uncommon); and United States v.
Van Buren, 804 F.2d 888, 892 (6th Cir. 1986) (holding that
the district court’s “reading of the indictment and defendant’s
admission of guilt are not sufficient compliance” with
Rule 11 where the crime charged is complex and not easily
understood), with United States v. Edgecomb, 910 F.2d 1309,

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No. 02-5163 United States v. Rose 13
1313 (6th Cir. 1990) (holding that district court adequately
explained the conspiracy charge at issue in that case by
reading the indictment accompanied by the government’s
recitation of the factual basis, because the conspiracy was
easily understood and the district court read the charges in the
indictment); and United States v. Ferguson, No. 96-6029,
1997 WL 764471, at *3-*4 (6th Cir. Dec. 3, 1997) (holding
that the district court’s failure to read the charges in the
indictment or list the elements of conspiracy to distribute
drugs did not violate Rule 11 because that crime is easily
understood, the government gave a detailed description of the
defendant’s conduct, the district court questioned the
defendant regarding the conduct that constituted the offense,
and the defendant stated that he had discussed the charges
with his attorney and understood the charges). Thus, we have
concluded that when a defendant claims that the district court
violated Rule 11 by failing during the plea colloquy to list the
elements of the crime charged, the sufficiency of the plea
colloquy depends upon the complexity of the crime charged.
“Where the crime is easily understood, several courts have
held that a reading of the indictment, or even a summary of
the charges in the indictment and an admission by the
defendant, is sufficient to establish a factual basis.” Van
Buren, 804 F.2d at 892. Additionally, we have held that a
simple conspiracy to distribute drugs is easily understood, and
thus a district court may comply with this part of Rule 11 by
merely reading the conspiracy charge from the indictment and
asking the defendant whether he understands it. Edgecomb,
910 F.2d at 1313.
Although Rose was convicted of a simple conspiracy to
distribute methamphetamine, a crime this court has held is
easily understood, we hold that the district court nonetheless
violated Rule 11(c)(1), and thus prevented Rose from entering
a valid guilty plea. Rule 11(c)(1) requires the district court to
inform the defendant of the charges against him and to
determine whether the defendant understands the nature of the
charge to which he is pleading guilty. Fed. R. Crim. P.
11(c)(1). “[A] determination of defendant’s understanding
14 United States v. Rose No. 02-5163
involves consideration of the nature of the charge and the
dialogue that took place between the defendant and the Court
during the Rule 11 proceeding.” Van Buren, 804 F.2d at 891.
In Edgecomb, this court considered the crime of conspiracy to
possess cocaine with intent to distribute and held that the
crime as alleged in that case, is easily understood, and thus
the district court there complied with Rule 11 by merely
reading the indictment where the government described the
facts constituting that conspiracy. Edgecomb, 910 F.2d at
1313. In this case, however, an examination of the record and
the dialogue that took place between the defendant and the
district court reveals that the defendant did not understand the
nature of the charge to which he was pleading guilty.
Here, the district court read the description of the charge in
Count One from the Superseding Indictment, while Count
One was stated differently in the plea agreement. Rose
objected to the district court’s reading of Count One of the
Superseding Indictment, insofar as it charged Rose with
conspiring to distribute five hundred grams of
methamphetamine, in violation of § 841(b)(1)(A), instead of
fifty grams of methamphetamine, in violation of
§ 841(b)(1)(B). Rose clarified that he was only pleading
guilty to fifty grams of methamphetamine, in violation of
§ 841(b)(1)(B), and thus obviated any Rule 11 problems that
might have arisen from the discrepancies between the
Superseding Indictment and the plea agreement regarding the
statutory provisions and the drug quantities. Rose did not
object, however, to the district court’s reading of Count One
of the Superseding Indictment, insofar as it charged Rose with
conspiring to distribute methamphetamine, instead of
attempting to distribute methamphetamine. Therefore, the
district court failed to determine whether Rose understood
that he was pleading guilty to conspiracy. The description of
the charges in the plea agreement indicates that Rose thought
he was pleading guilty to attempt. The district court,
however, accepted Rose’s guilty plea and entered a judgment
of conviction on the crime of conspiring to distribute
methamphetamine. Because Rose might not have understood

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No. 02-5163 United States v. Rose 15
that he was pleading guilty to conspiring to distribute
methamphetamine, rather than attempting to distribute
methamphetamine, he did not enter a valid guilty plea to
Count One.
Rule 11(f) requires the district court to determine that there
is a sufficient factual basis for the charge to which the
defendant is pleading guilty. Fed. R. Crim. P. 11(f). We have
held, “[W]hile the exact method of producing a factual basis
on the record is subject to a flexible standard of review, the
need to have some factual basis will continue to be a rule
subject to no exceptions.” Goldberg, 862 F.2d at 106
(quoting United States v. Fountain, 777 F.2d 351, 357 (7th
Cir. 1985)). We have also recognized that the district court
may determine the existence of a factual basis from various
sources, including a statement by the prosecutor or a
statement by the defendant. Id. at 105. The description of the
charges in the plea agreement indicates that Rose thought he
was pleading guilty to the crime of attempting to distribute
methamphetamine mixture. When ascertaining whether there
was a sufficient factual basis, the district court merely asked
Rose whether the written factual basis in the plea agreement
was true as far as Rose knew, and Rose agreed. Rose’s
confusion regarding the charge to which he was pleading
guilty likely spilled over into his concession that the factual
basis was true, and thus his concession does not constitute a
sufficient factual basis. Because the district court did not
determine that there was a sufficient factual basis for
conspiring to distribute methamphetamine mixture, Rose did
not enter a valid guilty plea to Count One.
All of the Sixth Circuit cases cited above, discussing the
procedure the district court must follow when accepting a
defendant’s guilty plea, were decided under the harmless error
standard. In this case, however, Rose did not raise the issue
of compliance with Rule 11 in the district court. Therefore,
we must review the district court’s actions for plain error.
Vonn, 535 U.S. at 59. In Syal, we held that, in a complex
case, the district court’s failure to list the elements of the
16 United States v. Rose No. 02-5163
7W e do, however, point out that “defects in an indictment do not
deprive a court of its power to adjudicate a case.” United States v. Cotton,
535 U .S. 625, 630 (200 2).
crime to which the plea is offered “cannot be said to be
harmless.” 963 F.2d at 905. In reaching this conclusion, in
Syal, we noted that the defendant’s substantial rights were
affected by the district court’s failure to list the elements. Id.
at 904. For the reasons discussed above, the errors committed
by the district court in this case affected Rose’s substantial
rights. To meet the higher plain error standard, in addition to
finding that the errors affected Rose’s substantial rights, we
must also find that the error “seriously affected the fairness,
integrity or public reputation of the judicial proceedings.”
Koeberlein, 161 F.3d at 949. Because the district court’s
violations of Rule 11 prevented Rose from understanding the
charge to which he was pleading guilty, the violations
seriously affected the fairness of the proceedings and rose to
the level of plain error.
B. District Court’s Jurisdiction to Accept Rose’s Guilty
Plea to Attempt
In his pro se brief, Rose also appears to argue that the
district court lacked jurisdiction to accept Rose’s guilty plea
and to sentence Rose on Count One because Rose pleaded
guilty to attempting to distribute methamphetamine, which
was not charged in the Superseding Indictment. The colloquy
at Rose’s plea hearing and the district court’s judgment of
conviction indicate that Rose actually pleaded guilty to
conspiring to distribute methamphetamine, which was
charged in the Superseding Indictment. Therefore, the district
court did not, as Rose contends, actually accept a guilty plea
to a crime not charged in the Superseding Indictment. This
conclusion and our decision to vacate Rose’s plea due to the
Rule 11 violations makes further analysis of this assignment
of error unnecessary.7

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No. 02-5163 United States v. Rose 17
8At one p oint, Rose seems to allege that the Superseding Indictment
was insufficient on this count. Appellant’s Br. at 4 (stating that the charge
was not “proper at indictment”). This court has held, “In order for an
indictment to be sufficient, it must con tain the elements of the offense
charged and fairly inform a defendant of the charges against which he
must defend.” Allen v. United States, 867 F.2d 969, 971 (6th Cir. 1989)
(citing Ham ling v. United States, 418 U.S. 87, 117 (197 4)). T his claim
has no merit because Count Three clearly charged Rose with carrying a
firearm during and in relation to a drug trafficking offense, in violation of
18 U.S.C. § 92 4(c).
C. Sufficiency of the Evidence for Count Three
In his pro se brief, Rose argues that there was insufficient
evidence to support his conviction on Count Three of the
Superseding Indictment, which charged Rose with carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c).8 By pleading guilty, Rose
admitted the truth of all of the facts set forth in the
Superseding Indictment. United States v. Parker, 292 F.2d 2,
2 (6th Cir. 1961); see also United States v. Kyle, No. 01-6014,
2001 WL 1580232, at *4 (6th Cir. Dec. 6, 2001).
Furthermore, the district court properly determined that the
facts stated in the Superseding Indictment and the factual
basis are sufficient to support a conviction for carrying a
firearm during and in relation to a drug trafficking offense;
therefore, we reject this assignment of error.
Section 924(c) provides:
any person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime —
(i) be sentenced to a term of imprisonment of not less
than 5 years.
18 United States v. Rose No. 02-5163
18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, a
defendant can be charged and convicted of violating § 924(c)
under three different theories, including (1) using a firearm
during and in relation to a drug trafficking crime, (2) carrying
a firearm during and in relation to a drug trafficking crime, or
(3) possessing a firearm in furtherance of a drug trafficking
crime. Rose was charged under the “carry” prong of § 924(c).
Rose argues that to be charged under the “carry” prong, the
defendant must have actively employed the firearm. In his
brief, Rose states:
A weapon in a car does not satisfy the carry standard set
forth in 18 USC § 924(c)(1)(a). [sic]. Bailey v US, 516
US 137.
In Bousley v US, 523 US 614, the Court held that, active
employment of a firearm is a requirement of charging a
defendant with 924(c). Active employment includes uses
such as brandishing, displaying, bartering, striking with,
firing, or attempting to fire the weapon, but does not
include mere possession of a firearm; thus, a defendant
cannot be charged under § 924(c)(1) merely for
(1) storage of a weapon near drugs or drug proceeds, or
(2) placement of a firearm to provide a sense of security
or to embolden.
Appellant’s Br. at 4. Although Rose is correct that Bailey v.
United States, 516 U.S. 137, 138-39 (1995), and Bousley v.
United States, 523 U.S. 614, 616 (1998), discuss the active
employment requirement, in those cases, the defendants were
convicted under the “use” prong of § 924(c). In the present
case, Rose was charged under the “carry” prong of § 924(c).
In Bailey, the Supreme Court held that to obtain a conviction
under the “use” prong, the government must show that the
defendant actively employed the firearm. Bailey, 516 U.S. at

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No. 02-5163 United States v. Rose 19
9Bousley discusses “the p ermissibility of po st-Bailey collateral
attacks on § 924(c)(1) convictions obtained p ursuant to guilty pleas.”
Bousley, 523 U.S. at 618.
148-49.9 The Court further held that showing that the
defendant merely possessed the firearm was not sufficient to
obtain a conviction under the “use” prong; therefore, “A
defendant cannot be charged under [the “use” prong of]
924(c)(1) merely for storing a weapon near drugs or drug
proceeds.” Bailey, 516 U.S. at 149.
The Court in Bailey additionally noted that the government
is not required to show that a defendant actively employed the
firearm to obtain a conviction under the “carry” prong. Id. at
150 (stating, “The ‘carry’ prong of § 924(c)(1) . . . brings
some offenders who would not satisfy the ‘use’ prong within
the reach of the statute”). Later, in Muscarello v. United
States, 524 U.S. 125, 128-39 (1998), the Court discussed the
elements the government must prove to obtain a conviction
under the “carry” prong of § 924(c). To obtain a conviction
under the “carry” prong, the government must show the
defendant transported the firearm, with some degree of
agency or control, during and in relation to a drug trafficking
crime. See Muscarello, 524 U.S. at 134, 139; Hilliard v.
United States, 157 F.3d 444, 449 (6th Cir. 1998). In
Muscarello, the Court held that the government may obtain a
conviction under the “carry” prong by showing the defendant
transported the firearm in his car during and in relation to a
drug crime. 524 U.S. at 139. The Court stated that the
“carry” prong “applies to a person who knowingly possesses
and conveys firearms in a vehicle, including in the locked
glove compartment or trunk of a car, which the person
accompanies.” Id. at 126-27.
In the present case, the factual basis accompanying Rose’s
plea agreement states, “After Rose and Vasquez were arrested
in Meigs County, police found a loaded .45 caliber handgun
in the passenger compartment of [their] automobile.” R. at 86
20 United States v. Rose No. 02-5163
(Factual Basis). Rose and Vasquez used this automobile to
transport the methamphetamine from Dalton, Georgia, to
Meigs County, Tennessee. Under Muscarello and Hilliard,
a defendant may be convicted under the “carry” prong if he
possesses and conveys a firearm. The district court’s finding
that the firearm was located in the passenger compartment of
the car Rose used to travel to Meigs County and to deliver the
methamphetamine was sufficient evidence to support Rose’s
conviction under the “carry” prong. Therefore, we reject
Rose’s claim that there was insufficient evidence to support
his conviction for carrying a firearm during and in relation to
a drug trafficking offense, in violation of 18 U.S.C. § 924(c).
Moreover, the fact that we are vacating Rose’s conviction on
Count One does not require us to vacate Rose’s conviction on
Count Three because § 924(c) only requires that the district
court be convinced that the defendant carried a weapon in
connection with a drug trafficking offense for which he may
be prosecuted. United States v. Ospina, 18 F.3d 1332, 1335-
36 (6th Cir.), cert. denied, 512 U.S. 1226 (1994).
D. District Court’s Compliance with Rule 11 for Count
Three
1. Factual Background
The description of the charge in Count Three in the plea
agreement also differs from that stated in the Superseding
Indictment. In the Superseding Indictment, Count Three
states:
RALPH VASQUEZ, REGINALD CHARLES ROSE,
III, and ERIC ESTRADA, aided and abetted by each
other, did knowingly and intentionally carry a firearm,
that is, a loaded .45 caliber Colt handgun, during and in
relation to the drug trafficking crimes set out in Counts
One and Two above, in violation of Title 18, United
States Code, Sections 2 and 924(c).

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No. 02-5163 United States v. Rose 21
R. at 34 (Superseding Indictment) (emphasis added). In the
plea agreement, paragraph one states:
The defendant agrees to plead guilty to the following
counts of a Superseding Indictment filed against him in
the above-styled case:
. . . Count Three charging him with a violation of
Title 18, United States Code, Section 924(c), that is,
knowingly and intentionally carry [sic] a firearm, during
and in relation to a drug trafficking crime.
R. at 81 (Plea Agreement). Thus, the description in the plea
agreement of the charge in Count Three omits the “aided and
abetted by each other” language that is included in the
Superseding Indictment.
At Rose’s plea hearing, the district court read the charge in
Count Three from the Superseding Indictment, including the
“aided and abetted by each other” language. In response,
Rose pleaded guilty. No objections were made regarding the
district court’s reading of the charge in Count Three. Also at
the plea hearing, when stating the elements that the
government would be required to prove in order to convict
Rose and Vasquez on the charge in Count Three, the district
court omitted the “aided and abetted by” language. The
district court stated:
In Count 3 you are charged, Mr. Vasquez and Mr.
Rose, with carrying a firearm during and in relation to
the commission of a drug-trafficking offense. For you to
be convicted of this crime, the government would have
to prove beyond a reasonable doubt the following two
elements: (1) you committed the drug-trafficking offense
alleged in Count 1 of the superseding indictment, and
(2) during and in relation to the commission of that drug-
trafficking offense, you knowingly carried a firearm.
Plea Hr’g Tr. at 16.
22 United States v. Rose No. 02-5163
2. Analysis
Unlike the discrepancy between the two versions of Count
One, the difference between the language of Count Three in
the Superseding Indictment and in the plea agreement did not
prevent Rose from entering a valid guilty plea to Count
Three. In the Superseding Indictment, Rose was charged both
as a principal and as an aider and abettor; therefore, the
district court did not err in reading the elements for carrying
a firearm as a principal and accepting Rose’s plea to carrying
a firearm as a principal.
As discussed above, when a defendant did not
contemporaneously object to the district court’s alleged
failure to comply with the requirements of Rule 11, we review
for plain error. Vonn, 535 U.S. at 59. Rule 11 specifies the
procedure to be followed by a district court in accepting a
defendant’s guilty plea. Rule 11(c) requires, among other
things, that “[b]efore 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 nature of the charge to
which the plea is offered.” Fed. R. Crim. P. 11(c).
Count Three of the Superseding Indictment charges Rose
with carrying a firearm during and in relation to a drug
trafficking crime, aided and abetted by the co-conspirators.
The plea agreement, however, describes Count Three as only
charging Rose with carrying a firearm in relation to a drug
trafficking crime. Thus, the “aided and abetted” language
included in the Superseding Indictment was omitted from the
plea agreement. During the plea colloquy, the district court
read Count Three, as stated in the Superseding Indictment,
but then listed the elements for carrying a firearm without
listing the aiding and abetting requirement.
The omission of the “aided and abetted by” language from
the plea agreement and from the district court’s reading of the
elements of the offense during the plea colloquy did not

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No. 02-5163 United States v. Rose 23
10Regard less of whether this additional language makes the
Superseding Indictment duplicitous or is mere surplusage, Rose may not
argue that the Superseding Indictment is defective on these bases because
by pleading guilty, Rose waived his objection to all non-jurisdictional
defects in the indictment. United States v. Moloney, 287 F.3d 236, 239
(2d Cir. 2002).
prevent Rose from entering a valid guilty plea to Count
Three. In Count Three of the Superseding Indictment, Rose
was charged as both a principal and an aider and abettor;10
therefore, the district court did not err in reading the elements
for carrying a firearm as a principal or accepting Rose’s plea
to carrying a firearm as a principal. Count Three of the
Superseding Indictment states that the defendants “aided and
abetted by each other, did knowingly and intentionally carry
a firearm.” This language charged Rose with carrying the
firearm himself, as well as aiding and abetting the other
defendants in the offense of carrying a firearm. To charge a
defendant with aiding and abetting, but not committing the
crime himself, an indictment would state that the defendant
aided and abetted another in the commission of the crime.
See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th
Cir.), cert. denied, 493 U.S. 834 (1989) (considering the
defendant charged “with aiding and abetting [another] in
knowingly receiving and possessing illegal machine guns in
violation of 18 U.S.C. § 2 and 26 U.S.C. § 5861(c)”).
Because Count Three of the Superseding Indictment charged
Rose with carrying a firearm as a principal and the written
plea agreement described Count Three as charging Rose with
carrying a firearm as a principal, the district properly advised
Rose of the nature of the charges against him in compliance
with Rule 11(c)(1).
Additionally, in a recent unpublished opinion, we held that
aiding and abetting is “merely a theory of liability, and not an
offense distinct in and of itself.” United States v. Taniguchi,
Nos. 00-4495, 00-4496, 2002 WL 31371978, at *13 (6th Cir.
Oct. 11, 2002) (citing United States v. Schuh, 289 F.3d 968,
976 (7th Cir. 2002)). In Taniguchi, we upheld the
24 United States v. Rose No. 02-5163
11In Taniguchi, we held that the indictment was sufficient because
it cited 18 U.S.C. § 2, which addresses aiding and ab etting liability.
United States v. Taniguchi, Nos. 00-4495, 00-4496, 2002 WL 31371978,
at *13 (6th Cir. Oct. 11, 2002).
defendant’s conviction for aiding and abetting another in
receiving illegal firearms, even though the indictment did not
include language referring to aiding and abetting liability.11
Id. at *13. The reasoning of Taniguchi applies in this case.
The omission of the “aided and abetted language” from the
plea agreement and from the district court’s reading of the
elements of the offense during the plea colloquy does not
constitute a violation of Rule 11.
E. Drug Quantity Used to Calculate Rose’s Sentence
1. Factual Background
On January 4, 2002, Rose was sentenced to 138 months’
imprisonment (seventy-eight months on Count One and sixty
months on Count Three) and four years of supervised release.
At the sentencing hearing, Rose joined Vasquez’s objection
to the amount of methamphetamine used to determine each of
their base offense levels. During the objection, Vasquez
argued that under United States Sentencing Guidelines
(“U.S.S.G.”) § 2D1.1, Application Note 12 (“Note 12”), the
additional two pounds of methamphetamine that Rose and
Vasquez agreed to deliver should not be considered in
determining his base offense level because Vasquez and Rose
were not reasonably capable of delivering the additional two
pounds due to their imminent arrest.
In response to the objection, the government argued that
under Note 12, these additional two pounds of
methamphetamine should be considered in determining
Rose’s and Vasquez’s base offense levels because they agreed
to deliver, intended to deliver, and were reasonably capable
of delivering the additional two pounds. The government
supported its argument by showing that during the same

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No. 02-5163 United States v. Rose 25
12During March 2 001 , the Georgia Bureau of Investigation (“GBI”)
investigated Estrada and Hector Garnica (“Garnica”). On March 12,
2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia
CI. Then, on March 1 6, 20 01, E strada and Braulio Garnica (“Braulio”)
delivered an additional one pound of methamphetamine to the CI. On
March 18, Estrada arranged to deliver two pounds of methamphetamine
to the same CI for $19,000 . On M arch 24, 2001 , Braulio delivered the
two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica,
and another charged co-co nspirator were also present at that delivery.
month, Estrada, Rose’s and Vasquez’s supplier, engaged in
transactions for one-half of a pound, one pound, and two
pounds of methamphetamine.12
The district court overruled the objection and accepted the
calculations contained in the Presentence Report (“PSR”).
The PSR used the additional two pounds of
methamphetamine that Rose and Vasquez agreed to deliver
and the one pound of methamphetamine that Rose and
Vasquez actually delivered to determine Rose’s base offense
level. In accordance with the PSR, the district court set
Rose’s base offense level for Count One at level thirty-two.
Rose received a three-level downward adjustment for
acceptance of responsibility, making Rose’s total offense
level twenty-nine for Count One. The district court also
granted a downward departure of three levels in accordance
with the government’s § 5K1.1 motion, which reduced Rose’s
offense level to twenty-six and resulted in a sentencing
guideline range of eighty-seven to ninety-seven months for
Count One.
2. Analysis
Rose’s claim of error regarding the quantity of drug used to
determine his base offense level is identical to his co-
defendant’s claim, which this court analyzed fully in United
States v. Vasquez, 352 F.3d 1067 (6th Cir. 2003). Consistent
with Vasquez, we hold that the district court did not err in
determining Rose’s base offense level based upon both the
26 United States v. Rose No. 02-5163
one pound of methamphetamine that Rose actually delivered
and the additional two pounds of methamphetamine that Rose
agreed to deliver. Note 12 provides:
In an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled
substance shall be used to determine the offense level
unless the sale is completed and the amount delivered
more accurately reflects the scale of the offense. . . . If,
however, the defendant establishes that he or she did not
intend to provide, or was not reasonably capable of
providing, the agreed-upon quantity of the controlled
substance, the court shall exclude from the offense level
determination the amount of controlled substance that the
defendant establishes that he or she did not intend to
provide or was not reasonably capable of providing.
U.S.S.G. § 2D1.1, cmt. n.12 (2001). Rose failed to prove that
he did not intend to provide or that he was not reasonably
capable of providing the additional two pounds of
methamphetamine; therefore, the district court properly used
a drug quantity of three pounds of methamphetamine mixture
to determine Rose’s base offense level.
Rose raises one additional claim of error regarding the
calculation of his sentence. Rose contends that the PSR
incorrectly attributes 4.5 pounds of methamphetamine
mixture to him in the determination of his base offense level.
This claim is meritless because it is based upon a misreading
of the PSR. Although the PSR refers to a drug quantity of 4.5
pounds of methamphetamine mixture, it attributes that
amount to Garnica, Estrada’s supplier. The 4.5 pounds was
not attributed to Rose. Only three pounds of
methamphetamine mixture were attributed to Rose and his
offense level was based upon a drug quantity of three pounds
of methamphetamine mixture.

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No. 02-5163 United States v. Rose 27
IV. CONCLUSION
The district court committed plain error by accepting
Rose’s guilty plea to Count One in a manner that violated
Rule 11. The district court did not commit plain error in
accepting Rose’s guilty plea to Count Three. Therefore, we
VACATE Rose’s conviction and sentence as to Count One
and REMAND for proceedings consistent with this opinion.

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