REVISED - February 20, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-40240

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERTO GUTIERREZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (L-99-CR-500-1) February 13, 2001 Before GARWOOD, PARKER and DENNIS, Circuit Judges. PER CURIAM:*

Roberto Gutierrez appeals his conviction after a guilty plea

for possession with intent to distribute approximately 180 pounds

of marijuana in violation of

(b)(1)(C). We

affirm.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 FACTS AND PROCEDURAL HISTORY

The Government entered into a plea agreement with Gutierrez,

agreeing to recommend that he receive a three-level acceptance-

of-responsibility decrease to his offense level and that he be

sentenced at offense level 21. The presentence report (“PSR”)

determined that, because of Gutierrez’s criminal history, his

offense level was 32 under the Sentencing Guidelines’ career-

offender provision. See U.S.S.G. § 4B1.1(C). With the three-

level adjustment for acceptance of responsibility, the PSR

recommended that Gutierrez be sentenced at level 29. Gutierrez

filed objections requesting a downward departure based on

U.S.S.G. § 5K1.1 or a mitigating role adjustment pursuant to

U.S.S.G. § 3B1.2.

Gutierrez was sentenced within the Guidelines range for

offense level 29 and criminal history category VI (151-188

months). He received a sentence of 156 months’ imprisonment,

three years’ supervised release, and a special assessment of

$100. He timely filed a notice of appeal.

DISCUSSION

Gutierrez argues that his plea was not knowingly and

voluntarily entered and that the Government breached the plea

agreement. He contends that his plea was based upon the

Government’s promise that it would make a meaningful

recommendation to the court to sentence him for a total offense

level of 21.

2 A. Rule 11 variances

Gutierrez argues that the failure to admonish him that he

could not withdraw his plea if the court did not follow the

agreement constituted a FED. R. CRIM. P. 11 violation. Gutierrez

contends that the district court committed other Rule 11 errors

when it failed 1) to admonish Gutierrez that the court had to

consider the Sentencing Guidelines but that it could depart from

them, 2) to inquire whether the plea was voluntary and not the

result of threats or promises apart from those in the plea

agreement, and 3) to ensure that there was a factual basis for

the plea. Gutierrez maintains the district court’s Rule 11

errors were not harmless given the totality of the errors.

Because a guilty plea involves the waiver of several

constitutional rights, it must be entered knowingly and

voluntarily. Boykin v. Alabama,

(1969).

The voluntariness of a defendant’s guilty plea is reviewed de

novo. United States v. Amaya,

(5th Cir. 1997).

Rule 11 sets forth certain procedures for the district court to

follow to ensure that a guilty plea is made voluntarily and

knowingly. When the defendant alleges that the district court’s

compliance with Rule 11 was flawed, this court employs a two-part

harmless-error analysis: “(1) [d]id the [district] court in fact

vary from the procedures required by Rule 11, and (2) if so, did

such variance affect substantial rights of the defendant?”

United States v. Johnson,

(5th Cir. 1993) (en

banc); see also United States v. Henry,

(5th Cir.

3 1997). To evaluate the second prong, this court determines if

“the district court’s flawed compliance with . . . Rule 11 . . .

may reasonably be viewed as having been a material factor

affecting [the defendant]’s decision to plead guilty.” Id. at

302 (internal quotation marks and citation omitted).

The district court need not follow a strict Rule 11 script

when conducting its colloquy for the plea to be voluntary and

knowing. Henry,

. “A plea of guilty entered by

one fully aware of the direct consequences, including the actual

value of any commitments made to him by the court, prosecutor, or

his own counsel, must stand unless induced by threats . . . [or]

misrepresentation (including unfulfilled or unfulfillable

promises). . .”

(internal quotation marks and

citations omitted).

The district court conducted a plea hearing for Gutierrez

and four other defendants. The district court advised the

defendants that they had the right to have an attorney present

during all proceedings and that false answers during the hearing

could subject them to a perjury charge. The court ensured that

each of the defendants wanted to plead guilty and that each

defendant was competent to do so. The court informed the

defendants that they had the right to a jury trial, to cross-

examine witnesses, to testify or not to testify, and to call

witnesses. The district court then asked Gutierrez if he was

satisfied with his attorney. Gutierrez responded: “I can’t be

too satisfied, but I’m going along with the recommendation.”

4 While addressing the other defendants, who were charged with

transporting illegal aliens, the district court stated that the

maximum penalty was not more than five years’ imprisonment and

that, although the plea agreement called for a much lower

penalty, the court “was not bound by it, but the guidelines do

shape the sentence [the court] can issue.” The prosecutor then

described the maximum sentence for Gutierrez, which was zero to

twenty years’ imprisonment, a fine of not more than $1,000, a

special assessment of $100, and a supervised release term of not

more than three years. The district court determined that

Gutierrez had signed the plea agreement and gave all the

defendants a chance to change their pleas, which none of them

did. No further admonishments were given.

The district court did not 1) inform Gutierrez that it was

required to consider the Sentencing Guidelines but that it could

depart from them; 2) establish that there was a factual basis for

the plea; or 3) specifically ask Gutierrez whether the plea was

not the result of threats or promises apart from the plea

agreement. See Rule 11(c)(1) (requiring admonishment about the

Sentencing Guidelines); 11(f) (requiring a factual basis for the

plea); 11(d) (requiring determination that plea is voluntary and

not forced or induced). Nor did the district court address the

terms of the plea agreement; inform Gutierrez that the court was

not bound by the agreement; or explain that, if the court did not

accept the agreement, Gutierrez could not withdraw his plea. See

Rule 11(e)(2) (requiring the disclosure of the agreement on the

5 record and notice to the defendant that, if the court does not

accept the agreement, he may not withdraw his plea).

We conclude that the district court varied from the

procedures required by Rule 11 and therefore go on to consider

whether each of the district court’s Rule 11 omissions was

harmless error. First, because Gutierrez was sentenced within

the Sentencing Guidelines range as calculated in the PSR,

informing Gutierrez about the district court’s ability to depart

from the Guidelines range probably would have had no effect on

his desire to plead guilty. Second, although the district court

did not specifically ask if Gutierrez was entering his plea free

from any threats, inducements, or promises apart from those in

the plea agreement, Gutierrez does not indicate that he was

threatened or induced by promises other than those in the plea

agreement to plead guilty. This Rule 11 omission also probably

did not affect his plea.

Third, although the district court did not determine whether

there was a factual basis at the plea hearing, Gutierrez

explained the details of the offense to the probation officer who

prepared the PSR. We have indicated “that evidence adduced after

the acceptance of a guilty plea, but before or at sentencing, may

provide the factual basis of the plea, and that such evidence may

be sufficient to sustain a plea on direct appeal.” United States

v. Dyer,

, 424 n.13 (5th Cir. 1998). We find that

Gutierrez’s statements describing the offense to the probation

6 officer before sentencing was a sufficient factual basis for the

plea. See

With respect to the district court’s failure to inform

Gutierrez that the court did not have to accept the plea

agreement and that he could not withdraw his plea if such

occurred, we note that Gutierrez was present when the court

explained to the other defendants that the court was not bound by

their plea agreements. Furthermore, Gutierrez’s argument that he

pleaded guilty based upon the plea agreement’s provision that the

Government would recommend an offense level of 21 is largely a

claim that he pleaded guilty based upon an expectation of the

length of his sentence. We have held that, when a defendant has

been properly informed of the maximum sentence he faced, he may

not argue that his plea was involuntary because of “his reliance

upon misinformation from both prosecution and defense counsel

about the likely period of incarceration.” United States v.

Garcia,

(5th Cir. 1993).

Additionally, all of the above-described Rule 11

requirements, including the agreement’s nonbinding effect on the

court, were addressed in the written plea agreement. Gutierrez

signed the agreement and acknowledged that he signed it at the

plea hearing. While relevant, that does not end our inquiry

because the court did not ask whether Gutierrez had read and

understood the agreement. See United States v. Portillo,

(5th Cir. 1994) (holding that waiver-of-appeal

provision in plea agreement is not enforceable unless the record

7 reflects, at a minimum, that the defendant has read and

understood the agreement).

In United States v. Thibodeaux,

(5th

Cir. 1987), we held as harmless error the district court’s

failure to explain that the defendant could not withdraw his plea

if the district court did not accept the plea agreement, which

contained a recommended sentence. We conclude that the district

court’s variance from Rule 11 requirements were harmless error in

the present case as well. First, Gutierrez was present while the

district court explained the non-binding nature of a plea

agreement to the other defendants in the same plea hearing.

Second, Gutierrez’s signature on the plea agreement that

contained all the necessary admonitions makes it likely that he

had all the information necessary to make an informed decision.

Third, the focus of his complaint on appeal is that he entered a

guilty plea without realizing that he was subject to the career-

offender provisions of the Sentencing Guidelines. Even if the

district court had conducted a perfect Rule 11 plea hearing,

Gutierrez would not have learned about this issue until after the

PSR was prepared. We therefore hold that the Rule 11 violations

were harmless error.

B. Breach of Plea Agreement

When a breach-of-the-plea-agreement issue is raised for the

first time on appeal, we review it for plain error. United

States v. Cerverizzo,

(5th Cir. 1996). Under

FED. R. CRIM. P. 52(b), we may correct forfeited errors only when

8 the appellant shows that there was an error, which was clear or

obvious, and which affected his substantial rights. United

States v. Calverley,

(5th Cir. 1994) (en

banc) (citing United States v. Olano,

(1993)). If these factors are established, the decision to

correct the forfeited error is within our discretion, and we will

not exercise that discretion unless the error seriously affects

the fairness, integrity, or public reputation of the judicial

proceedings. Olano,

.

At the sentencing hearing and in his objections to the PSR,

Gutierrez argued that being sentenced at level 29, when the

prosecutor had promised to recommend that he be sentenced at

level 21, constituted an excessive punishment in violation of the

Eighth Amendment. He did not argue that the plea agreement had

been breached. We thus review this issue for plain error.

"[W]hen a plea rests in any significant degree on a promise

or agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be

fulfilled." Santobello v. New York,

(1971).

To assess whether a plea agreement has been violated, we consider

"whether the government's conduct is consistent with the

defendant's reasonable understanding of the agreement." United

States v. Cantu,

(5th Cir. 1999) (internal

quotation marks and citation omitted).

The prosecutor, while addressing Gutierrez’s Eighth

Amendment argument, stated that, although the Government agreed

9 to recommend that Gutierrez be sentenced at level 21, the

prosecutor was “unaware [at the time the Government entered the

plea agreement] of the full extent of the criminal history, . . .

did not realize he would qualify for the enhancement in Section

4B,” and did not believe that the enhancement was discretionary.2

The prosecutor noted that she believed the PSR, with its

recommendation of level 29, was correct, but stated that, “we are

bound by our recommendation in the plea agreement. And so we’re

in sort of an awkward position of saying, ‘[w]e must recommend a

Level 21, based on the plea agreement.’”

The prosecutor then noted that, because Gutierrez was three

points over the minimum required for criminal history category

VI, she could have asked for an upward departure. The court and

the prosecutor also noted that an offense level of 21 was not

available at the time of the plea agreement given that Gutierrez

had to be sentenced as a career offender.

In two direct appeals in which the Government argued a

position at sentencing which was in direct conflict with the plea

agreement, we determined that the Government had breached the

plea agreement and, in one case, that the breach amounted to

plain error. See United States v. Valencia,

, 760-61

2 The prosecutor advised the court at sentencing, “[w]e just didn’t have all the information to verify that he was going to qualify for a criminal – as a career criminal” but did not offer any explanation as to why she did not ascertain the extent of Gutierrez’s criminal history until the PSR was prepared. The Government does not argue that Gutierrez bore any fault in the Government’s failure to take his criminal history into account during the plea negotiations.

10 (5th Cir. 1993); United States v. Goldfaden,

, 1328-

1329 (5th Cir. 1992). In Valencia, the Government stipulated in

the plea agreement that the defendant had accepted responsibility

for his actions in the plea agreement, but at sentencing argued

that the defendant did not demonstrate remorse and was not

entitled to any credit for acceptance of responsibility.

Valencia,

. The defendant immediately objected

that the Government had breached the plea agreement.

The

court determined that the Government argued the opposite of its

position in the plea agreement in plain violation of the language

of the plea agreement and that the error was not harmless.

.

In Goldfaden, the Government had agreed to make no

recommendation as to the defendant’s sentence; however, at the

sentencing hearing, the Government argued that certain Guidelines

provisions were applicable. Goldfaden,

.

Under plain-error review, we determined that the Government’s

recommendations about Guidelines levels were the same as

recommendations about the defendant’s sentence.

.

Much like Goldfaden, wherein the prosecutor sought to

distinguish between making a sentencing recommendation and a

recommendation of what Guidelines provisions applied, the

prosecutor here initially recommended that Gutierrez be sentenced

at level 21, but went on to argue that the district court was

precluded from following that recommendation and was required to

sentence Gutierrez at level 29 because the career offender

11 provisions of the Sentencing Guidelines are mandatory. See

U.S.S.G. § 4B1.1; see also Goldfaden,

.

Moreover, the prosecutor discussed the court’s option to depart

upward based on Gutierrez’s criminal history points.

We conclude that the Government breached the plea agreement

and that the breach amounts to plain error. The Government’s

violation of commitments made to Gutierrez in the plea agreement

may have resulted from sloppy preparation or a disingenuous

prosecutor. Either way, such a breach affects the fairness,

integrity, and public reputation of the judicial proceedings.

Olano,

. However, Gutierrez’s criminal history is

not in dispute and it would be a waste of judicial resources to

remand this case for resentencing, given the mandatory nature of

the Guidelines provision in question. We therefore decline to

correct the plain error in this case.

CONCLUSION

Based on the foregoing, we affirm Gutierrez’s conviction and

sentence.

AFFIRMED.

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