UNITED STATES OF AMERICA, PETITIONER V. MARIO BERNAL

   No. 88-1942

   In the Supreme Court of the United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Reply Brief For The United States

   1. Respondent suggests that we have "manufactured an illusory
conflict" among the circuits and have mischaracterized the harmless
error framework applied by the court of appeals in this case as
"inflexible and artificial." Br. in Opp. 8.  Those contentions are
without merit.

   The conflict among the circuits is manifest, as is clear from the
following comparison between the approach taken by the court of
appeals in this case and that taken by the Seventh Circuit in United
States v. Ray, 828 F.2d 399, 405 (1987), cert. denied, 108 S. Ct. 1233
(1988):

   Bernal

   "In United States v. Dayton, * * * we held en banc that a failure
by the district court to address Rule 11's core concerns required
automatic reversal.  * * * In appeals predicated on a failure to
comply with Rule 11 -- other than a failure to address the core
concerns -- we apply a harmless error analysis." Pet. App. 4a.

   Ray

   "A district court's failure to comply with Rule 11(c)(1) is
harmless error 'where it can be said from a review of the proceedings
that the defendant nevertheless understood the charges.' * * * Whether
the defendant has understood will 'vary from case to case, depending
on the complexity of the charges and the personal characteristics of
the defendant -- including age, education, intelligence, alacrity of
his responses, and whether he's represented by counsel.'" 828 F.2d at
405.

   The automatic reversal rule that the Fifth Circuit adopted in
United States v. Dayton, 604 F.2d 931 (1979) (en banc), cert. denied,
445 U.S. 904 (1980), is inconsistent with Rule 11(h) because it
forecloses consideration of the kinds of facts referred to in Ray.  In
this case, for instance, the Fifth Circuit reversed respondent's
conviction without considering the nature of the offense, a simple
drug distribution charge;  the personal characteristics of the
defendant, including his education, employment, and fluency in
English;  and his sworn responses to questions based upon the written
plea agreement.  Under Ray, all of those circumstances would have been
relevant to the issue whether any deficiency in the guilty plea
proceeding affected respondent's substantial rights.  Because the
Dayton rule precludes consideration of those factors, it departs from
the well-established harmless error principles that Rule 11(h) makes
applicable to guilty pleas.  See United States v. Lane, 474 U.S. 438,
448 n.11 (1986) (harmless error inquiry "requires a review of the
entire record").

   Contrary to respondent's contention (Br. in Opp. 6-8), nothing in
the Advisory Committee note accompanying Rule 11(h) suggests that
courts may dispense with a review of the particular facts of a case
based solely upon the nature of the Rule 11 violation in issue.  By
its terms, the rule applies to "any variance" from the procedures
prescribed by Rule 11.  While the Advisory Committee provided some
examples of the Rule's operation and cautioned against acceptance of
"extreme or speculative harmless error claims" (Advisory Committee
note (1983 Amendment) to Fed. R. Crim. P. 11(h), 18 U.S.C. App. at 988
(Supp. IV 1986)), the drafters plainly did not suggest that any
category of error should trigger "automatic reversal."

   2. Respondent also contends that this Court should not grant
certiorari on the harmless error question presented in the petition
because his conviction was subject to reversal on another ground.  He
argues that his guilty plea was invalid because it was based on
mistaken advice as to the possible term of post-release supervision
and a misapprehension, shared by the government and the district
court, as to the effective date of the statute under which he was
sentenced, Section 1002 of the Anti-Drug Abuse Act of 1986, Pub. L.
No. 95-570, 100 Stat. 3207-3 to 3207-4, 21 U.S.C. 841(b)(1)(B) (Supp.
IV 1986).  Br. in Opp. 10-11.  Accordingly, he suggests that his
conviction would have to be reversed regardless of the correctness of
the Fifth Circuit's analysis of the question presented by the
petition.  These contentions are without merit, and do not justify
denial of the petition.

   a. With one possible qualification discussed below, Section 1002
was fully applicable to respondent's offense.  /1/ Section 1002 was
enacted into law on October 27, 1986.  Because the Anti-Drug Abuse Act
contained no provision postponing the effective date of that Section,
the courts of appeals have uniformly held that the increased terms of
imprisonment and fines that it authorizes are applicable to all
offenses committed after that date.  United States v. Levario, 877
F.2d 1483, 1487 (10th Cir. 1989);  United States v. Padilla, 869 F.2d
372, 381-382 (8th Cir.), cert. denied, 109 S. Ct. 3223 (1989);  United
States v. Meyers, 847 F.2d 1408, 1414-1416 (9th Cir. 1988).  See
United States v. Posner, 865 F.2d 654, 659-660 (5th Cir. 1989)
(upholding sentence imposed under Section 1002 for offense committed
between October 27, 1986, and November 1, 1987;  United States v.
Whitehead, 849 F.2d 849, 858-860 (4th Cir.) (same), cert. denied, 109
S. Ct. 534 (1988);  United States v. Brandon, 847 F.2d 625, 630-631
(10th Cir.) (same), cert. denied, 109 S. Ct. 510 (1988);  United
States v. Smith, 840 F.2d 886 (11th Cir.) (same), cert. denied, 109 S.
Ct. 154 (1988);  United States v. Levy, 865 F.2d 551, 559 n.4 (3d Cir.
1989);  see also United States v. Portillo, 863 F.2d 25, 26-27 (8th
Cir. 1988) (noting the unanimous position of other courts but
reserving judgment on the question).  Respondent is therefore wrong in
asserting (Br. in Opp. 10) that Section 1002 is inapplicable to
offenses committed prior to November 1, 1987.  /2/

   In this case, respondent entered a plea of guilty to a count
alleging that he distributed a kilogram of cocaine on August 2, 1987.
Pet. 15 n.9.  Because that offense was committed after Section 1002
became effective, the prison terms and fine authorized by that section
were applicable.  At the plea proceeding, the trial court correctly
advised respondent of those potential penalties as modified by the
plea agreement's 15-year cap on imprisonment.  Pet. App. 23a.  Thus,
the district court, the prosecutor, and respondent were not mistaken
as to Section 1002's applicability, and respondent was under no
misapprehension as to the plea agreement's effect on the period of
incarceration to which he was exposed.  /3/

   b. The only possible qualification to Section 1002's applicability
to this case concerns the issue of the post-release supervision
authorized for respondent's offense.  Before respondent offered his
guilty plea, the district court advised him that his sentence would
include a four-year term of supervised release (Pet. App. 23a), and
the court included that sanction in his sentence (C.A. R.E. 16).  By
its terms, Section 1002 mandates a term of "supervised release" of
between four years and life for respondent's offense.  However,
Section 211 of the Sentencing Reform Act of 1984, 18 U.S.C. 3583
(Supp. IV 1986), which specifies the characteristics of this form of
post-release monitoring, did not become effective until November 1,
1987.  As a result, the courts of appeals have divided on the question
whether this sanction may be imposed for an offense, like
respondent's, that was committed after the effective date of Section
1002, October 27, 1986, but before November 1, 1987.  Compare United
States v. Levario, 877 F.2d at 1487-1488;  United States v. Portillo,
863 F.2d at 26;  United States v. Whitehead, 849 F.2d at 860;  United
States v. Smith, 840 F.2d at 889-890;  United States v. Byrd, 837 F.2d
179, 180-182 (5th Cir. 1988), with United States v. Torres, 880 F.2d
113 (9th Cir. 1989).

   Because the court of appeals reversed respondent's conviction on
account of what it found to be an inadequate explanation of the nature
of his offense, the court did not address his contention that he could
not lawfully be sentenced to a term of supervised release.  See Pet.
App. 2a n.2.  Accordingly, if this Court grants certiorari and
reverses the judgment of the court of appeals, that court will have to
address the question whether respondent must be resentenced.  The fact
that that issue might have to be addressed on remand, however, does
not affect the appropriateness of this case for this Court's review,
since it affects only respondent's sentence and casts no doubt on the
validity of his guilty plea and conviction.

   Even if respondent could not be sentenced to a term of supervised
release (thus rendering the district court's advice concerning his
exposure to that form of post-release supervision incorrect),
respondent's guilty plea would remain valid.  Since respondent was
prepared to plead guilty to an offense that, he was advised, would
carry a term of four years of post-release supervision, he necessarily
would have been willing to plead guilty if he had known that no
post-release supervision would be forthcoming.  See United States v.
Molina-Uribe, 853 F.2d 1193, 1198-1199 (5th Cir. 1988).  /4/ In short,
this case squarely raises the question presented by the petition, and
that question merits this Court's review.

   For the foregoing reasons, and those stated in the petition, the
petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   SEPTEMBER 1989

   /1/ With respect to first offenses involving the distribution of
500 grams or more of cocaine, Section 1002 establishes a mandatory
minimum term of imprisonment of 5 years and a maximum term of 40
years;  prohibits probation, suspended sentences, and parole;  and
permits imposition of a fine on an individual of up to $2,000,000.
100 Stat. 3207-3 to 3207-4.

   /2/ United States v. De Los Reyes, 842 F.2d 755 (5th Cir. 1988),
and United States v. Byrd, 837 F.2d 179 (5th Cir. 1988), upon which
respondent relies (Br. in Opp. 10), address only the availability of
supervised release for offenses committed before November 1, 1987.
Consistent with the decisions of all other courts of appeals, the
Fifth Circuit has recognized that prison terms may be imposed under
the 1986 statute for offenses committed prior to that date.  See
United States v. Posner, 865 F.2d at 659-660.

   /3/ By entering that agreement, respondent obtained the dismissal
of three counts and reduced his exposure to imprisonment without
possibility of parole on the remaining count from 40 years to 15
years.  Compare Pet. App. 13a with 21 U.S.C. 841(b)(1)(B) (Supp. IV
1986).

   /4/ As respondent notes (Br. in Opp. 10), the district court
mistakenly suggested that the maximum term of post-release supervision
authorized by Section 1002 is four years, rather than life.  However,
since respondent was sentenced to no more than the maximum term of
which he was advised, that error would be harmless even if
respondent's conviction and sentence were upheld.  See United States
v. Khan, 869 F.2d 661 (2d Cir. 1989);  United States v. Sheppard, 588
F.2d 917 (4th Cir. 1978) (per curiam);  Advisory Committee note (1983
Amendment) to Fed. R. Crim. P. 11(h), 18 U.S.C. App. at 989 (Supp. IV
1986).