United States v. 2006-01-03 | 04-30339 | USA VADAMS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-30339
Plaintiff-Appellee, D.C. No.
v.  CR-02-00021-CCL
RONALD BRUCE ADAMS, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
September 14, 2005—Seattle, Washington
Filed January 3, 2006
Before: Arthur L. Alarcón, Alex Kozinski, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Alarcón;
Dissent by Judge Kleinfeld
3

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COUNSEL
Robert S. Mahler and Raymond J. Dearie, Jr., Bullivant
Houser Bailey PC, Seattle, Washington; Daniel Donovan,
Thompson Potts & Donovan PC, Great Falls, Montana, for
the defendant-appellant.
William W. Mercer, United States Attorney, and Bernard F.
Hubley, Assistant United States Attorney, Helena, Montana,
for the plaintiff-appellee.
OPINION
ALARCÓN, Circuit Judge:
Ronald Adams appeals from the district court’s order sen-
tencing him to five years in prison and fining him $400,000.
He contends that his guilty plea was not knowing, voluntary
and intelligent, that the district court improperly failed to give
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him a sentence reduction under the Safety Valve, and that his
sentence violated United States v. Booker, 125 S. Ct. 738
(2005). We vacate Mr. Adams’s guilty plea and conviction
because we conclude that it was not knowing, voluntary and
intelligent in light of the district court’s failure to inform him
that he was subject to a mandatory fine under the Sentencing
Guidelines. Accordingly, we do not consider the additional
issues raised by Mr. Adams.
I
On September 2, 2003, Montana state officials found 200
marijuana plants on Mr. Adams’s property. Mr. Adams
entered into a plea agreement with the Government, in which
he admitted planting the garden. In the plea agreement, the
Government agreed to recommend to the district court that no
fine be imposed as part of his sentence. The Presentence
Report (“PSR”) found that, pursuant to the United States Sen-
tencing Guidelines Manual (U.S.S.G.) § 5E1.2(c)(3) and (4),1
1U.S.S.G. § 5E1.2(c) reads as follows:
(1) The minimum of the fine guideline range is the amount
shown in column A of the table below.
(2) Except as specified in (4) below, the maximum of the fine
guideline range is the amount shown in column B of the table
below.
(3) Fine Table:
Offense A B
Level Minimum Maximum
3 and below $ 100 $ 5,000
4-5 $ 250 $ 5,000
6-7 $ 500 $ 5,000
8-9 $ 1,000 $ 10,000
10-11 $ 2,000 $ 20,000
12-13 $ 3,000 $ 30,000
14-15 $ 4,000 $ 40,000
16-17 $ 5,000 $ 50,000
18-19 $ 6,000 $ 60,000
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the applicable fines ranged from $4,000 to $2,000,000 for
each of the two charged offenses, and that Mr. Adams had
$7,408,034 in assets.
The district court imposed a fine of $200,000 for each of
the two offenses, for a total of $400,000.
II
Mr. Adams asserts that his sole motivation for pleading
guilty was the agreement he had with the Government that it
would ask the district court not to impose a fine. He alleges
that, had the judge informed him that he was subject to a man-
datory minimum fine, he would not have pled guilty.
Because Mr. Adams did not object below to the failure of
the district court to comply with Rule 11(b)(1)(I) and Rule
11(b)(1)(M) of the Federal Rules of Criminal Procedure, we
review for plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002). “Plain error is: (1) error; (2) that was plain; and (3)
affected substantial rights.” United States v. Benitez-Perez,
367 F.3d 1200, 1205 (9th Cir. 2004) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)). “If the error satisfies these
criteria, we are still not required to reverse unless the error
‘seriously affected the fairness, integrity, or public reputation
of judicial proceedings.’ ” Id. (quoting United States v. Alli,
344 F.3d 1002, 1007 (9th Cir. 2003)).
20-22 $ 7,500 $ 75,000
23-25 $10,000 $100,000
26-28 $12,500 $125,000
29-31 $15,000 $150,000
32-34 $17,500 $175,000
35-37 $20,000 $200,000
38 and above $25,000 $250,000.
(4) Subsection (c)(2), limiting the maximum fine, does not
apply if the defendant is convicted under a statute authorizing (A)
a maximum fine greater than $250,000, or (B) a fine for each day
of violation. In such cases, the court may impose a fine up to the
maximum authorized by the statute.
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[1] Rule 11(b)(1)(I) provides that during the plea colloquy,
“the court must inform the defendant of, and determine that
the defendant understands . . . any mandatory minimum pen-
alty.” Section 5E1.2(a) of the Sentencing Guidelines provides
that “[t]he court shall impose a fine in all cases, except where
the defendant establishes that he is unable to pay and is not
likely to become able to pay any fine.” Mr. Adams contends
that under Rule 11(b)(1)(I), the district court was required to
inform him that a fine was mandatory, but failed to do so.
Prior to accepting his guilty plea, the district court advised
Mr. Adams as follows:
Now as to the penalties. I believe your plea agree-
ment acknowledges your understanding of the mini-
mum penalty here being a term of imprisonment for
five years on each of the two counts and the maxi-
mum penalty of 40 years as to each particular crime,
as well as a fine of not to exceed $2 million or both
imprisonment and fine and additionally a term of
supervised released or at least not more than five
years supervised release as to each count.
The district court did not inform Mr. Adams that, in addition
to a minimum term of imprisonment for five years, the district
court was required to impose a mandatory fine pursuant to
U.S.S.G. § 5E1.2(a).
[2] The Government contends that the district court did not
err in failing to inform Mr. Adams that he faced a mandatory
minimum fine because the imposition of a fine is not manda-
tory under the Sentencing Guidelines. In support of this argu-
ment, the Government points to the exception in U.S.S.G.
§ 5E1.2(a): “The court shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and
is not likely to become able to pay any fine.” (Emphasis
added.) The Government asserts that this exception makes the
imposition of the fine discretionary. Therefore, it argues, the
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district court was not required to inform Mr. Adams that he
would be subject to a fine. The Government has not cited any
authority to support its interpretation of § 5E1.2(a). We are
persuaded that the plain meaning of § 5E1.2(a) is that, if a
defendant has the means to pay the fine, the imposition of a
fine is mandatory. See, e.g., Lopez v. Davis, 531 U.S. 230,
241 (2001) (“Congress’ use of the permissive ‘may’ . . . con-
trasts with the legislators’ use of a mandatory ‘shall’ in the
very same section. Elsewhere in [the section], Congress used
‘shall’ to impose discretionless obligations . . . .”); Lexecon,
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26,
35 (1998) (“The Panel’s instruction comes in terms of the
mandatory ‘shall,’ which normally creates an obligation
impervious to judicial discretion.”).
The Government contends further that there was no error in
this case because Mr. Adams was put on notice of the maxi-
mum fine he could face. This argument misses the point. Mr.
Adams argues that the district court violated Rule 11(b)(1)(I)
by failing to advise him that, as a direct consequence of a
guilty plea, he would be subject to a mandatory minimum fine.
We agree. Mr. Adams entered a guilty plea after the Govern-
ment promised to ask the district court not to impose any fine.
We infer from the plea agreement that both parties believed
the district court had the discretion not to impose a fine.
We previously held in United States v. Maree, 934 F.2d
196 (9th Cir. 1991) that
Rule 11(c)(1) requires the sentencing court to “in-
form the defendant of . . . the mandatory minimum
penalty provided by law.” The Rule does not, how-
ever, require the court to discuss the minimum
guideline sentence. In a practical sense, it would be
impossible for a court to inform a defendant of the
minimum sentence available under the Guidelines.
The presentence report, which is not prepared prior
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to the entrance of a guilty plea, is essential to the
court’s formulation of the relevant sentence factors.
Id. at 200 (alteration in original).
Here, the Sentencing Guidelines provided that Mr. Adams
would be subject to a mandatory fine regardless of the offense
level that would be calculated in the PSR. See n.1 supra
(quoting “Fine Table” from U.S.S.G. § 5E1.2(c)(3)). Thus,
even if the district court did not know at the time of the plea
colloquy the precise amount of the fine that would be applica-
ble, it was required to inform Mr. Adams that a mandatory
fine would be imposed.
In any event, the change of plea hearing in Maree occurred
in 1988, prior to the amendment of Rule 11 on December 1,
1989. Rule 11(b)(1)(M) provides that a district court must
inform the defendant of “the court’s obligation to apply the
Sentencing Guidelines.” We held in Maree that because “[t]he
1988 version of Rule 11[ ] did not require the district court to
discuss the guidelines . . . the district court did not err” in fail-
ing to advise him of the applicability of the Sentencing Guide-
lines. 934 F.2d at 200. We noted in Maree that “[t]he current
form of R11[ ] does indeed require that the district court
inform a defendant entering a plea of the sentencing guide-
lines’ applicability.” Id. Thus, the holding in Maree is not
controlling, nor is it the law of this circuit regarding guilty
pleas entered after the amendment to Rule 11 requiring a
court to explain its obligation to apply the Sentencing Guide-
lines.2
2The string of cases cited in footnote 21 of the dissent does not support
the notion that the holding in this case is contrary to the law of this circuit
and the view of nine other circuits.
It is quite true that at the time of the publication of this court’s decision
in Maree, the Eighth Circuit’s decision in United States v. Thomas, 894
F.2d 996 (8th Cir. 1990) (per curiam), and the Tenth Circuit’s decision in
United States v. Rhodes, 913 F.2d 839 (10th Cir. 1990), a district court
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[3] More recently, in United States v. Littlejohn, 224 F.3d
960 (9th Cir. 2000), we held that “district courts in this circuit
still must inform defendants pleading guilty of the direct con-
sequences of their plea and resulting conviction, in addition
to the warnings required by the explicit language of Rule
11[ ].” Id. at 965 (emphasis added). We have described a
direct consequence of a guilty plea as a result that “represents
a definite, immediate and largely automatic effect on the
range of the defendant’s punishment.” Torrey v. Estelle, 842
F.2d 234, 236 (9th Cir. 1988) (quotation and citation omitted).
We concluded in Littlejohn that the district court erred when
it failed to advise the defendant that pleading guilty would
render him ineligible for social security assistance and food
stamp benefits, notwithstanding the fact that that consequence
was not set forth in Rule 11. Littlejohn, 224 F.3d at 969.
[4] A direct consequence of Mr. Adams’s guilty plea was
the imposition of a mandatory fine under § 5E1.2(a), unless
he established at the sentencing hearing that he was unable to
was not required to discuss with the defendant the applicability of the Sen-
tencing Guidelines prior to accepting a guilty plea. In each of these cases,
the plea colloquy took place prior to December 1, 1989, before Rule 11
was amended to provide that a district court must inform a defendant of
its “obligation to apply the Sentencing Guidelines.” Thus, Maree is no
longer the law of the circuit except as to guilty pleas entered prior to
December 1, 1989. Furthermore, the out-of-circuit cases cited in the dis-
sent have no precedential or persuasive value in determining a district
court’s duty under Rule 11(b)(1)(M). None of the cases cited in the dissent
discusses the question whether the failure of a district court to fulfill its
obligation under Rule 11(b)(1)(M) to inform the defendant that the Sen-
tencing Guidelines provide for a mandatory fine under certain circum-
stances renders a guilty plea involuntary.
We do not hold that, prior to accepting a guilty plea, a judge must
inform a defendant of the precise minimum fine that will be imposed.
Instead, we conclude that Rule 11 requires a district court to advise a
defendant that he shall face a mandatory fine if he or she has the ability
to pay it. Obviously, the amount of the fine and the defendant’s ability to
pay it will depend upon the facts set forth in the presentence report.
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pay it. Thus, under Littlejohn, as well as Rule 11, the district
court erred in failing to advise Mr. Adams that he faced the
imposition of a mandatory fine unless he persuaded the court
that he was unable to pay it.
[5] The Supreme Court has instructed that a guilty plea is
voluntary only if the defendant is fully aware of the direct
consequences of his or her plea. See Brady v. United States,
397 U.S. 742, 755 (1970). It has also held that the plea collo-
quy is designed “to protect the defendant from an unintelli-
gent or involuntary plea.” Mitchell v. United States, 526 U.S.
314, 322 (1999). Mr. Adams has demonstrated that he was not
fully aware of the direct consequences of his plea because he
was not informed by the district court that he would be sub-
ject to a mandatory fine. Mr. Adams bargained for, and
obtained, a promise from the Government to recommend that
no fine be imposed, and he insists he would not have pleaded
guilty had he known that the court could not adopt such a rec-
ommendation. The plea agreement led him to believe that the
district court had the discretion to adopt the Government’s
recommendation that a fine not be imposed.
[6] We therefore hold the court’s error was plain and
affected Mr. Adams’s substantial right to enter a knowing,
voluntary and intelligent plea. To accept a guilty plea under
such circumstances affects the fairness, integrity, and public
reputation of judicial proceedings because “we cannot know
whether [the defendant] would have pleaded differently if he
had been properly informed.” United States v. Smith, 60 F.3d
595, 600 (9th Cir. 1995).3
3The dissent correctly notes that Mr. Adams’s wealth makes him an
“exception rather than the rule,” and that, for most criminal defendants,
“the judge would find that the defendant could not pay the fine.” Dissent
at 15. It is precisely Mr. Adams’s wealth (and hence his ability to pay),
together with the terms of his plea agreement, that make this the rare case
in which the district court’s failure to inform him of the mandatory fine
cannot be deemed harmless. See Fed. R. Crim. P. 11(h).
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We VACATE the plea and conviction, and REMAND for
further proceedings.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent.
The majority decides this case contrary to binding circuit
authority, and contrary to the views of all nine other circuits
that have spoken to the question. Fortunately, the practical
significance of the majority’s holding should gradually dissi-
pate as pre-Booker1 sentences complete their passage through
appellate and post-conviction review. Unfortunately, there are
plenty of pre-Booker sentences left to go.
The district judge’s duty to advise a defendant of “any
mandatory minimum penalty”2 has always been understood to
mean statutory mandatory minimums, not guideline “manda-
tory” minimums. What everyone (judges, prosecutors,
defense attorneys) interpreting criminal law knew, until
today’s opinion, was that “mandatory minimums” meant such
penalties as the five-year, statutory mandatory minimum
sentence—with no possibility of probation, parole, or of serv-
ing it concurrently with any other term—for using a gun dur-
ing a crime of violence or a drug trafficking crime.3 There is
no discretion, no exception, and no flexibility to depart from
this sort of statutory, mandatory minimum.
There is now no such thing as a “mandatory minimum”
sentence imposed by the guidelines because, under Booker,
the guidelines are merely advisory. But even before Booker,
there was no such thing; the guidelines always allowed for
1United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
2Fed. R. Crim P. 11(b)(1)(I).
318 U.S.C. § 924(c)(1).
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departures and Rule 11 provided for plea agreements binding
the court to a guideline determination.4 As for the minimum
fine provisions central to this case, they were never manda-
tory by their own terms because they were conditional on the
court’s determination of the defendant’s ability to pay.5
Rule 11, upon which the majority relies, plainly distin-
guishes between the subsection (I) duty to advise of manda-
tory minimum sentences and the quite distinct subsection (M)
duty to advise the defendant of “the court’s obligation to
apply the Sentencing Guidelines, and the court’s discretion to
depart from those guidelines under some circumstances.”6
Post-Booker, that advice will be even more distinct from sub-
section (I) mandatory minimum advice than it used to be. The
addition of subsection (M) at a time when subsection (I) was
already there shows that the rule was never meant to apply
subsection (I) to the guidelines. When subsection (M) was
added by amendments in 1989, the Advisory Committee
Notes explained that the purpose was to assure that the defen-
dant knew of “the existence of the guidelines,” even though
“it would be impractical, if not impossible, to know which
guidelines will be relevant prior to the formulation of a pre-
sentence report.”7 As for the subsection (I) duty to advise the
defendant of mandatory minimum sentences, the Advisory
Committee Notes explained that the statutory mandatory
minimum, unlike other consequences of the plea of which it
was not necessary to advise the defendant, “is usually readily
ascertainable from the face of the statute defining the crime,
and thus it is feasible for the judge to know specifically what
to tell the defendant.”8
4Fed. R. Crim. P. 11(c)(1)(C).
5U.S.S.G. § 5E1.2 (e), (f).
6Fed. R. Crim. P. 11(b)(1)(M).
7Fed. R. Crim. P. 11 (Advisory Committee Note: 1989 Amendments).
8Fed. R. Crim. P. 11 (Advisory Committee Note: 1974 Amendments).
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In this case, it would have been likewise impossible for the
district judge to know that there would really be a “mandato-
ry” fine when he accepted Adams’s guilty plea.9 Most crimi-
nals are not multi-millionaires like Adams. It is therefore
likely the exception rather than the rule that the fine specified
by the guidelines was imposed—even pre-Booker—because
the judge would find that the defendant could not pay the fine.
Perhaps Adams could have anticipated that the district judge
would have imposed a fine because Adams knew his own
wealth, but the judge accepting the plea could not have known
and likely would not have imagined that he was sentencing a
man worth more than $7 million. District judges do not get a
lot of defendants who can actually pay six figure fines. The
presentence report, which in this case showed that the defen-
dant was a multi-millionaire, is not prepared until after the
judge takes the plea.10
Careful trial judges in all courts generally use scripts that
they or judicial service agencies have prepared to assure that
they do not leave out anything they are required to say. This
is especially true in what are, for the district judges, routine
and high volume proceedings in which one can easily forget
some detail. Federal district judges have the advantage of par-
ticularly good scripts, prepared by the Federal Judicial Center.
The Federal Judicial Center script for taking pleas, used in
innumerable Ninth Circuit pleas with such modifications as
our case law has required, draws the same distinction with
reference to statutory mandatory minimums involving fire-
arms and drugs:
9Adams does not raise as an issue on appeal any failure by the govern-
ment to make recommendations as promised. He acknowledged in his plea
agreement that the court would not be bound by government regulations.
The court could have departed from the guidelines and accepted the gov-
ernment’s recommendation if there was an appropriate justification for
doing so.
10United States v. Sanders, 41 F.3d 480, 487 (9th Cir. 1994) (“[T]he
presentence report is not prepared until after the defendant pleads
guilty.”).
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(b) Determine whether defendant faces a manda-
tory minimum sentence or an increase in the statu-
tory maximum sentence because of one or more
prior firearms offenses, violent felonies, or drug
offenses. If this is not known at the time of the plea,
advise defendant of the possible maximum sentence.
Regarding the sentencing guidelines, the script takes the only
practical approach, “I don’t know, it’s unpredictable. Talk to
your lawyer.”:
L. Ask defendant:
1. Have you and your attorney talked about how
the sentencing guidelines might apply to your
case? [Note: If there is a plea agreement that a
specific sentence will be imposed (Fed. R. Crim.
P. 11(e)(1)(C)), skip to question 4.].
2. Do you understand that the court will not be able
to determine the guideline sentence for your
case until after the presentence report has been
completed and you and the government have
had an opportunity to challenge the reported
facts and the application of the guidelines rec-
ommended by the probation officer, and that the
sentence imposed may be different from any
estimate your attorney may have given you?
3. Do you also understand that, after your guide-
line range has been determined, the court has the
authority in some circumstances to depart from
the guidelines and impose a sentence that is
more severe or less severe than the sentence cal-
led for by the guidelines?
As the majority notes, we held in United States v. Maree11
that Rule 11
11United States v. Maree, 934 F.3d 196, 200 (9th Cir. 1991).
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requires the sentencing court to ‘inform the defen-
dant of . . . the mandatory minimum penalty pro-
vided by law.’ The Rule does not, however, require
the court to discuss the minimum guideline sentence.
In a practical sense, it would be impossible for a
court to inform a defendant of the minimum sentence
available under the Guidelines. The presentence
report, which is not prepared prior to the entrance of
a guilty plea, is essential to the court’s formulation
of the relevant sentence factors.
The majority leaves out the next sentence from Maree,
which expressly answers the question before us: “Rule 11
only requires the mention of a minimum sentence, not the
minimum guideline sentence.”12 Today we hold the opposite.
This failure to follow our own precedent is impermissible
without rehearing en banc.
The majority tries to avoid Maree — going the “wrong”
way from its point of view — by suggesting that Maree is no
longer good law because Rule 11 was amended to add subsec-
tion (M). That argument is mistaken, and we must follow
Maree as binding circuit authority. Subsection (I) says to tell
the defendant of “any mandatory minimum penalty,”13 but
subsection (M) says to tell the defendant of “the court’s obli-
gation to apply the Sentencing Guidelines, and the court’s dis-
cretion to depart.”14 The language is clear enough in
distinguishing that the defendant must be told (1) what the
statutory, mandatory minimums are, and (2) that the guide-
lines exist and must be applied subject to the court’s discre-
tion to depart. The Advisory Committee Notes make it even
more explicit that mandatory minimums “readily ascertain-
able from the face of the statute defining the crime,”15 but that
12Id. at 200. (emphasis in original).
13Fed. R. Crim. P. 11(b)(1)(I).
14Fed. R. Crim. P. 11(b)(1)(M).
15Fed. R. Crim. P. 11 (Advisory Committee Note: 1974 Amendments).
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the court need not tell the defendant “which guidelines will be
important.”16 That is about as plain as these things get: by
adding subsection (M), the Rule did not add a duty to advise
what guideline minimums would apply because, as the Advi-
sory Committee Notes explain, that would be “impracticable,
if not impossible.”
And that is what Maree says, the controlling Ninth Circuit
case the majority prefers not to follow. Maree disposed of two
Rule 11 issues. First, the court had not told the defendant that
it was obligated to follow the guidelines, subject to discretion-
ary departures.17 On that issue, the addition of Rule
11(b)(1)(M) controlled, and that confuses the majority’s read-
ing. Maree held that the judge was not then required to advise
the defendant that the guidelines were controlling because
subsection (M) had not yet gone into effect.18 Second, Maree
complained that the judge had not told him what minimum
sentence the guidelines required. Maree does not tie its analy-
sis of this second argument to subsection (M) at all, though
today’s majority is confused on this point. Maree quotes the
requirement in (I)—binding then and now—to advise the
defendant of any “mandatory minimum penalty,” and holds
that (I) “only requires the mention of a minimum sentence, not
16Fed. R. Crim. P. 11 (Advisory Committee Note: 1989 Amendments)
(“This requirement assures that the existence of guidelines will be known
to a defendant before a plea of guilty or nolo contendere is accepted. Since
it will be impracticable, if not impossible, to know which guidelines will
be relevant prior to the formulation of a presentence report and resolution
of disputed facts, the amendment does not require the court to specify
which guidelines will be important . . . By giving the advice, the court
places the defendant and defense counsel on notice of the importance that
guidelines may play in sentencing and of the possibility of a departure
from those guidelines. A defendant represented by competent counsel will
be in a position to enter an intelligent plea.”).
17Maree, 934 F.2d at 200 (“Maree first contends that the district court
was required to advise him that it was obligated to consider the applicable
sentencing guidelines.”).
18Id.
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the minimum guideline sentence.”19 In what has turned out to
be a vain hope of avoiding confusion, Maree stressed the dis-
tinction between minimum sentences and minimum guideline
sentences, holding that the “minimum sentence referred to in
the rule refers to the statutory minimum.”20
Evidently, only today’s majority is confused about the sig-
nificance of adding subsection (M). The nine other circuits
that have ruled on this issue unanimously hold that the sub-
section (I) requirement that the judge tell the defendant of any
mandatory minimum means only statutory mandatory mini-
mums, not guideline mandatory minimums.21 And these nine
19Id. at 200 (emphasis in original).
20Id.
21See, e.g., United States v. Watley, 987 F.2d 841, 846 (D.C. Cir. 1993)
(Noting that Rule 11 refers to “statutory prescriptions”); see also United
States v. Mosley, 173 F.3d 1318, 1327 & n.11 (11th Cir. 1999); United
States v. Rhodes, 913 F.2d 839, 843-44 (10th Cir. 1990) (“Rule 11 is satis-
fied when a court informs the defendant of the maximum and minimum
statutory sentences.”); United States v. Thomas, 894 F.2d 996, 996 (8th
Cir. 1990) (“The District Court complied with the requirements of Rule
11(c)(1) by advising Thomas of the maximum statutory penalty for his
offenses.”); U.S. v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003) (“Rule 11
only requires that the court inform the defendant of the maximum and
minimum penalties authorized under the applicable statute, as well as the
fact that the particular sentence imposed will be determined by reference
to the federal sentencing guidelines”); United States v. Pearson, 910 F.2d
221, 223 (5th Cir. 1990) (Explaining that Rule 11’s “notice of mandatory
minimum and maximum sentences has been construed to apply to statu-
tory sentencing ranges, and not to guideline adjustments.”); United States
v. DeFusco, 949 F.2d 114, 118 (4th Cir. 1991) (“The guideline range does
not set a mandatory minimum penalty for an offense within the meaning
of Rule 11.”); United States v. Henry, 893 F.2d 46, 47 (3rd Cir. 1990)
(Explaining that Rule 11 “is concerned with statutory minimum and maxi-
mum penalties and not with guidelines ranges.”); United States v. Fernan-
dez, 877 F.2d 1138, 1143 (2nd Cir. 1989) (“it was enough that the district
court herein informed appellant of the minimum and maximum sentences
which he faced—Rule 11 required no more. The statutory minimum and
maximum sentences for the offense of conviction mark the boundaries
within which the Guidelines sentence must fall.”).
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other circuits have so ruled before and after the addition of
subsection (M), the intervening event the majority uses to
upend Maree. They run from 1989 to 2003, a solid phalanx
of authority agreeing with what we held in Maree, which
binds us today. In United States v. Littlejohn22—subsequent to
the addition of (M) to Rule 11—we ourselves cited Maree for
the proposition that the “district court need not advise defen-
dant of a minimum sentence required under the guidelines.”23
The majority tries to distinguish Maree by implying that
the court here knew that Adams would be subject to a manda-
tory minimum fine, but that is incorrect. As explained above,
the fine was not mandatory and the court could not have
known of Adams’s net worth until the pre-sentence report
computed it. There is simply no way to escape Maree’s hold-
ing that the “minimum sentence referred to in the rule refers
to the statutory minimum.”24 The majority’s reliance on Little-
john is also unavailing: that case involved failure to warn a
defendant of the statutory consequences of a guilty plea, not
guideline penalties.25
Let us hypothesize that a normal, intelligent, scholarly,
careful district judge trying to follow the law is called upon
to decide whether he had to advise the defendant in the Rule
11 colloquy of a minimum prescribed by the sentencing
guidelines. Let us further hypothesize that the judge thought
he might be able to figure out some way to calculate the
defendant’s criminal history level and guidelines adjustments
at the time of the plea. Gathering our authorities, the judge
would read in Maree that “Rule 11 only requires the mention
22United States v. Littlejohn, 224 F.3d 960, 967-68 (9th Cir. 2000).
23Id. at 967.
24Maree, 934 F.2d at 200.
25See Littlejohn, 224 F.3d at 966 (“The direct/collateral analysis in Lit-
tlejohn’s case must focus on two separate statutory provisions: 21 U.S.C.
§ 862(a) . . . and 21 U.S.C. § 862a.”).
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of a minimum sentence, not the minimum guideline sentence.”26
Then the judge would read in Littlejohn that Maree held that
the “district court need not advise defendant of a minimum
sentence under the guidelines.”27 If the judge had any question
about whether the law was settled, he might read the opinions
of other circuits and learn that all nine that had spoken had at
all times come to the same conclusion. Asked “Does Rule 11
require a judge to advise a defendant of a minimum guideline
sentence?” our hypothetical perfect judge would say “no,
unequivocally no. That is too easy a question to ask seriously
in the face of all this authority.” That sensible judge, seasoned
by the prudence that accompanies experience, would think, “if
I tell the defendant what I think the guidelines range is for his
sentence, then I risk reversal because some of what affects
that range is likely to be a surprise we all learn from the pre-
sentence report.”28 Given our previous, clear authority on this
subject, today’s holding to the contrary will be quite a sur-
prise.
Nor can I share the majority’s insouciance in the face of the
nine opinions of our sister circuits expressly rejecting the
majority’s position. As outlined in footnote 21, infra, each of
these circuits has concluded that Rule 11 is concerned solely
with statutory minimum penalties, not minimums imposed by
the sentencing guidelines. For example, the Eleventh Circuit,
quoting our decision in Maree, held “[w]e agree with the
Ninth Circuit’s reasoning . . . . ‘Rule 11 only requires the
mention of a minimum sentence, not the minimum guideline
26Maree, 934 F.2d at 200 (emphasis in original).
27Littlejohn, 224 F.3d at 967.
28See, e.g., Watley, 987 F.2d at 842, 847 (Court’s incorrect estimate that
it “could, and likely would set [defendant’s] sentence” at one range when
the guidelines required another sufficient to withdraw guilty plea); see
also United States v. DeFusco, 949 F.2d 114, 118 (4th Cir. 1991) (quoting
United States v. Henry, 893 F.2d 46, 48-49 (3rd Cir. 1990)) (“[A]ny esti-
mate of the guideline range that the district court would give in advance
of the pre-sentence report might well turn out to be misleading and could
be the basis for a contention that the guilty plea should be invalidated.”).
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sentence. The minimum sentence referred to in the rule refers
to the statutory minimum.’ ”29 When Justice Ginsburg was on
the D.C. Circuit, she authored an opinion coming to the same
conclusion. She explained that “the statutory prescriptions . . .
are the ones to which Rule 11[ ] points in referring to ‘the
mandatory minimum penalty provided by law.”30 The guilty
plea was reversed on other grounds,31 but the majority was
clear that it was joining the “uniformly held” views of the
other circuits.32 The Seventh Circuit has also recently rejected
the majority’s position in clear and unmistakable terms,
explaining that “Rule 11 only requires that the court inform
the defendant of the maximum and minimum penalties autho-
rized under the applicable statute.”33
Despite nine of our sister circuits having agreed with us, we
have now disagreed with ourselves.
29United States v. Mosley, 173 F.3d 1318, 1327 n.11 (11th Cir. 1999)
(quoting Maree, 934 F.2d at 200).
30United States v. Watley, 987 F.2d at 846.
31Id. at 847 (Explaining that the reversal “did not stem from a failure
to adhere to Rule 11[ ]’s penalty notice instruction.”).
32Id. at 846.
33United States v. Blalock, 321 F.3d 686, 689 (7th Cir. 2003).
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