DAVID EARL VIDAURRI, PETITIONER V. UNITED STATES OF AMERICA No. 89-7627 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-4a) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 4, 1990. The petition for a writ of certiorari was filed on May 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court's failure to advise petitioner about his ineligibility for parole and the application of the Sentencing Guidelines rendered petitioner's guilty plea invalid. STATEMENT 1. Petitioner was charged by information in the Southern District of Texas with one count of possession of approximately 53 pounds of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(D). Under a plea agreement with the government, petitioner pleaded guilty to the charge. /1/ Before accepting petitioner's plea, the district court advised him of the range of punishment he faced: The maximum for this particular crime would be five years in prison. I'm not telling you you're going to get five years, but that's the worst you can get. And a two hundred and fifty thousand dollar fine and you must get a fifty dollar cost assessment and you must get a period of supervised release of three to five years. That means that whatever sentence I give you, when you get out, you have to be supervised for three to five years. It's sort of like being on probation or parole. You have to check in with the probation officers. They want to see that you're working and that you're not taking drugs, and, of course, that you're not violating the law again, and if you break any of the rules, then you have to go back in and serve more time. So you have to expect that also. Do you understand that? Gov't C.A. Br. 3-4. /2/ Petitioner told the court he understood the possible sentence he faced. After petitioner agreed with the government's factual basis for the plea, the court accepted petitioner's guilty plea. In July 1989, the court sentenced petitioner to a term of 33 months' imprisonment, to be followed by a term of five years' supervised release. Petitioner was also fined $1,500. Pet. 2a; Gov't C.A. Br. 4. 2. The court of appeals affirmed. Pet. App. 1a-4a. In the court of appeals, petitioner contended that the district court's failure to advise him about his ineligibility for parole and the application of the Sentencing Guidelines rendered his guilty plea invalid. Following Hill v. Lockhart, 474 U.S. 52, 56 (1985), the court of appeals held that a trial court need not advise the defendant about parole ineligibility in order to render an otherwise voluntary and intelligent guilty plea constitutionally valid. Pet. App. 2a-3a. Similarly, the court held that the language of Fed. R. Crim. P. 11(c)(1) (1989) did not require advising a defendant about the application of the Sentencing Guidelines. Pet. App. 3a-4a (citing United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989)). /3/ Accordingly, the court of appeals concluded that petitioner's guilty plea was valid. /4/ ARGUMENT 1. Petitioner renews his contention (Pet. 6-7) that the district court's failure to advise him about his ineligibility for parole rendered petitioner's guilty plea invalid. This Court has stated that "(t)he longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). As petitioner concedes, "(k)nowledge of the direct consequences of the plea requires knowledge of the range of punishment, including any (mandatory) maximum or minimum penalty provided by law." Pet. 6. Accordingly, in Hill v. Lockhart, supra, the Court expressly stated that (w)e have never held that the United States Constitution requires the States to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts. 474 U.S. at 56. /5/ Following Hill, the lower courts have unanimously held that the trial court's failure to advise the defendant about parole ineligibility does not render an otherwise voluntary and intelligent plea invalid. See, e.g., Holmes v. United States, 876 F.2d 1545, 1548-1549 (11th Cir. 1989); United States v. Posner, 865 F.2d 654, 658-659 (5th Cir. 1989); United States v. Sanclemente-Bejarno, 861 F.2d 206, 209 (9th Cir. 1988); United States v. Gutierrez, 839 F.2d 648, 652 (10th Cir. 1988). /6/ In these circumstances, petitioner's challenge to his guilty plea must fail. 2. Petitioner also contends (Pet. 7-9) that the district court's failure to advise him about the application of the Sentencing Guidelines rendered his guilty plea invalid. At the time the district court accepted petitioner's plea, Fed. R. Crim. P. 11(c)(1) did not call for the court to advise a defendant about the application of the Sentencing Guidelines. See note 3, supra. Here, petitioner does not dispute that the district court advised him about the maximum sentence he faced and that he in fact received a more lenient sentence. Cf. United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989) ("The district court was not required to calculate and explain the Guidelines sentence to the appellant before accepting the plea, for, once appellant was informed of the possible consequences enumerated in the Rule -- the maximum and the minimum sentences -- the requisites of Rule 11 were met, * * * and the plea should not be vacated * * *."). In these circumstances, the court's failure to mention application of the Sentencing Guidelines could not reasonably have induced petitioner to plead guilty; indeed, petitioner has not even suggested that he was unfamiliar with the applicability of the Sentencing Guidelines. /7/ In any event, Rule 11(c)(1), as amended effective December 1, 1989, now requires the trial court to advise the defendant about the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances. Fed. R. Crim. P. 11(c)(1) (1990). That amendment accordingly deprives the issue petitioner presents of any continuing significance. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General MERVYN HAMBURG Attorney JULY 1990 /1/ In exchange for petitioner's plea and cooperation, the government agreed not seek an enhanced sentence based on petitioner's previous narcotics conviction and also agreed not to make any recommendation at sentencing. Pet. 3; Gov't C.A. Br. 2-3. /2/ The district court's colloquy with petitioner otherwise complied with Fed. R. Crim. P. 11(c) (1989), a point petitioner does not dispute. /3/ Fed. R. Crim. P. 11(c) (1989), provided in pertinent part: 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 following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term or term of supervised release and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense * * *. The court of appeals noted (Pet. App. 3a) that Fed. R. Crim. P. 11(c)(1), as amended effective December 1, 1989, now requires the trial court to advise the defendant about the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances. Fed. R. Crim. P. 11(c)(1) (1990). /4/ The court of appeals also rejected petitioner's constitutional challenge to the imposition of the special assessment under 18 U.S.C. 3013. Pet. App. 4a. Petitioner has not sought further review of that claim. /5/ The Court was referring to Fed. R. Crim. P. 11(c), which did not require the trial court to advise a defendant about parole ineligibility before accepting his guilty plea. Petitioner does not dispute that Rule 11(c), to this day, imposes no such requirement. See Fed. R. Crim. P. 11 Advisory Committee's Note on 1974 Amendment (declining to amend Rule to require advice about parole ineligibility). /6/ Petitioner correctly points out (Pet. 7) that the court of appeals' decision conflicts with Gates v. United States, 515 F.2d 73 (7th Cir. 1975); Bye v. United States, 435 F.2d 177 (2d Cir. 1970); and Berry v. United States, 412 F.2d 189 (3d Cir. 1969). Since each of those decisions predated Hill v. Lockhart, supra, however, the conflict does not warrant further review now. Review is unnecessary until each of those circuits has had an opportunity to revisit the issue in light of this Court's intervening decision in Hill and the Advisory Committee's consideration and rejection in 1974 of the proposal to require advice regarding parole ineligibility. See note 5, supra. /7/ Petitioner also appears to suggest (Pet. 8) that Fed. R. Crim. P. 11(c)(1) requires the trial court to advise the defendant about the range of sentence applicable under the Sentencing Guidelines. The courts of appeals, however, have uniformly rejected that position. See, e.g., United States v. Thomas, 894 F.2d 996, 997 (8th Cir. 1990); United States v. Skelton, 893 F.2d 40, 48 (3d Cir. 1990); United States v. Turner, 881 F.2d 684, 687 (9th Cir. ), cert. denied, 110 S. Ct. 199 (1989); United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989).