Guilty Plea - Advice of Possible Sentence and Consequence of Plea

Padilla v. Kentucky, 130 S. Ct. 1473 (2010)

The failure to advise a defendant about the deportation consequences of entering a plea in a felony drug case amounted to ineffective assistance of counsel. The Court held that in certain situations, the failure to provide any advice constitutes ineffective assistance – especially where the consequence of a plea is easy to determine and is “automatic” – while in other cases, it is required at a minimum that counsel advise the defendant that there may be immigration consequences and that the defendant should seek advice from an immigration law attorney. In other words, to be effective, an attorney may be required to actually provide accurate advice if the immigration consequences are clear; and at a minimum, should warn the defendant of possible consequences if the result of entering a plea is not so clear. The Court held that the right to effective assistance of counsel is not violated only when counsel provides erroneous advice.

United States v. Dominguez Benitez, 542 U.S. 74 (2004)

If a trial court fails to advise the defendant that he will not have the right to withdraw his plea if the court rejects the government’s recommendation (as required by Rule 11), and the defendant does not object to this Rule 11 violation, the plain error standard applies. Moreover, in order to set aside the guilty plea under this standard, the defendant must show that he would not have entered a guilty plea had the trial court properly advised him. In other words, there must be a prejudicial “effect” of the trial court’s error; and absent a finding that the defendant would not have entered a guilty plea had he been properly advised, there can be no such showing.

United States v. Batamula, 788 F.3d 166 (5th Cir. 2015)

If an attorney fails to advise a defendant of deportation consequences, the defendant may challenge the validity of the plea (and the attorney’s ineffective assistance), even if the trial judge, during the Rule 11 colloquy, provides that advice.

United States v. Avila, 733 F.3d 1258 (10th Cir. 2013)

The defendant litigated a Motion to Suppress and lost. Hr tried to enter a conditional plea, reserving the right to appeal the Fourth Amendment issue, but the government rejected this offer. The defendant then entered an unconditional plea. During the plea colloquy, the judge said that he had the right to appeal. The advice by the court did not explain that the guilty plea negated his right to appeal various issues, including the fouth amendment issue. This rendered the plea involuntary. The court should have advised the defendant that he had the right to appeal his sentence and perhaps certain other issues, but not the fourth amendment issue.

United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012)

The defendant’s attorney told the defendant he would not be deported. The judge told the defendant at sentencing that he “could” be deported. Actually the offense mandated deportation. The Fourth Circuit held that the attorney’s bad advice was grounds to grant coram nobis relief 12 years after the plea was entered.

United States v. Carreon-Ibarra, 673 F.3d 358 (5th Cir. 2012)

During the plea colloquy, the defendant was advised that he faced a sentence of 5 years to life on a gun charge. The PSR revealed that the gun was a machinegun, mandating a 30-year mandatory minimum sentence. The defendant sought to withdraw his plea. The trial court erred in refusing to allow him to withdraw, given the inaccurate advice about the existence of a mandatory minimum sentence.

United States v. Ortiz-Garcia, 665 F.3d 279 (1st Cir. 2011)

The trial court failed to properly advise the defendant of the possible maximum sentence that he faced. This rendered the plea and the appeal waiver void.

Tovar Mendoza v. Hatch, 620 F.3d 1261 (10th Cir. 2010)

The trial attorney’s grossly inaccurate statement to the defendant about the amount of time he would be required to serve if he pled guilty amounted to ineffective assistance of counsel and rendered the guilty plea involuntary. Defense counsel told the defendant his sentence would be three years. The sentence imposed was 25 years.

United States v. Self, 596 F.3d 245 (5th Cir. 2010)

If the district court does not intend to adhere to the terms of a binding plea agreement that was entered pursuant to Rule 11(c)(1)(C), the court must clearly state that the court rejects the plea agreement in toto. In this case, the trial court advised the defendant that the court would accept the plea except as to the sentence on one of the counts. The court may not accept a binding plea in part. This should have been more accurately explained to the defendant so that he could have made a decision whether to withdraw his plea.

United States v. Gray, 581 F.3d 749 (8th Cir. 2009)

Because the judge failed to correctly advise the defendant of the possible maximum sentence he faced, the guilty plea was defective. The fact that the judge ultimately imposed a sentence below the amount that he advised the defendant was the maximum sentence did not cure the error.

United States v. Rivera-Maldonado, 560 F.3d 16 (1st Cir. 2009)

Erroneously advising a defendant that the term of supervised release is three years, when it is actually life amounts to plain error and the guilty plea was set aside, even though there was no objection at the time of sentencing.

Jamison v. Klem, 544 F.3d 266 (3rd Cir. 2008)

Failing to advise a defendant of a mandatory minimum five year sentence rendered a state court guilty plea invalid, even though the defendant was aware of the twenty year sentence that he was exposed to by entering a guilty plea.

United States v. Hairston, 522 F.3d 336 (4th Cir. 2008)

When the defendant entered a guilty plea, he acknowledged that he faced 0 – 10 years on the possession of a firearm by a convicted felon count, plus a mandatory minimum 5 consecutive for a § 924(c) count and a mandatory minimum consecutive 25 years for a second § 924(c) count. In short, he envisioned a thirty year sentence. The defense attorney, the court and the prosecutor overlooked that that the first count would be treated as an armed career criminal act count, requiring fifteen years, not 0 – 10. Thus, the defendant was sentenced to 45 years. The inaccurate advice tainted the guilty plea and necessitated remanding the case to give the defendant the opportunity to re-plead on all counts.

United States v. Sura, 511 F.3d 654 (7th Cir. 2007)

The district court’s failure to inquire about, and advise the defendant of the consequences of the appeal waiver as required by Rule 11(b)(1)(N) was plain error that negated the voluntariness of the guilty plea.

United States v. Benz, 472 F.3d 657 (9th Cir. 2006)

In this Assimilative Crimes Act case (driving under a suspended license) the mandatory minimum sentence was ten days in jail. Failing to advise the defendant of this mandatory minimum at the time the guilty plea was entered was error that resulted in setting aside the plea.

Hanson v. Phillips, 442 F.3d 789 (2d Cir. 2006)

The state court’s plea colloquy was insufficient to satisfy the standard of Boykin v. Alabama, 395 U.S. 238 (1969). The advice about his right to go to trial was insufficient; the defendant’s express waiver of his right to go to trial was insufficiently demonstrated.

United States v. Adams, 432 F.3d 1092 (9th Cir. 2006)

The trial court’s failure to advise the defendant that there would be a mandatory fine rendered the guilty plea invalid. Even though the defendant was told about the possible maximum fine, he was not told that U.S.S.G. § 5E1.2(a) required the imposition of a fine. (The dissent predicts that this case would be rendered obsolete by Booker’s holding that the Guidelines are advisory).

United States v. Gonzalez, 420 F.3d 111 (2d Cir. 2005)

The defendant pled guilty to a drug conspiracy indictment that alleged that he possessed with intent to distribute at least 50 grams of crack. During the plea colloquy, he denied possessing considerably more. At sentencing, the judge found that he possessed an amount that triggered a mandatory minimum twenty year sentence. The factual basis for the plea, and the voluntariness of the plea, was inadequately established.

United States v. Murdock, 398 F.3d 491 (6th Cir. 2005)

If a trial judge fails to expressly discuss an appeal waiver with a guilty-pleading defendant (a violation of Rule 11(b)(1)(N)), the provision is subject to plain error review that is more relaxed than the plain error standard required by Dominguez-Benitez and Vonn. This is because the defendant is only seeking review, not overturning his conviction.

United States v. Rodriguez-Gonzales, 386 F.3d 951 (10th Cir. 2004)

The defendant entered a guilty plea, but on the record, informed the court that he intended to preserve his Motion to Suppress for § 2255 review. This is not a legal possibility, however, since fourth amendment claims may not be reviewed in a § 2255 proceeding and a guilty plea waives non-jurisdictional defects. This was not a valid knowing and voluntary plea, because the defendant did not correctly understand the consequences of his plea.

United States v. White, 366 F.3d 291 (4th Cir. 2004)

The defendant entered into a guilty plea, but claimed in a § 2255 petition that he was orally assured by his attorney and the AUSA that he could appeal the denial of the suppression motion. Both parties in the § 2255 proceeding agreed that defense counsel made this assurance. Both parties also agreed that this rendered the plea involuntary, because the defendant did not understand the consequences of his plea. The Fourth Circuit held that the trial court should have conducted a full evidentiary hearing to determine if the government did, in fact, orally assure the defendant that he could enter a conditional plea.

United States v. Harrington, 354 F.3d 178 (2d Cir. 2004)

The trial court’s inaccurate statement about the mandatory minimum sentence (stating that there was one, despite the fact that there wasn’t because of an Apprendi defect in the indictment) and incorrect statement about the mandatory restitution (failing to mention restitution), rendered the plea defective.

United States v. Martinez, 277 F.3d 517 (4th Cir. 2002)

Though it was not plain error, the trial court erred in failing to comply with the Rule 11 requirements that the trial court advise the defendant correctly about the applicability of the mandatory minimum and the statutory maximum sentence (the advice that was given was erroneous, in light of Apprendi); and in failing to advise the defendant that he would not be permitted to withdraw his plea.

United States v. Couto, 311 F.3d 179 (2d Cir. 2002)

Trial counsel affirmatively misled the defendant into believing there were things that could be done to avoid deportation (when, in fact, there were none). This affirmative misrepresentation is different than a failure to advise the defendant of collateral consequences of a plea.

United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998)

The defendant was misinformed during the plea colloquy about the sentencing guideline range for his offense. Though the actual guideline range was not a subject of the plea agreement and the defendant was advised that sentencing was a matter that would be determined by the judge and that if the guideline range had been inaccurately predicted by the attorneys, the plea could not be withdrawn, the advice given to the defendant by the court and the prosecutor about the guideline range was completely erroneous. Therefore, the plea was not voluntary.

United States v. Gigot, 147 F.3d 1193 (10th Cir. 1998)

Both the plea agreement and the in-court recitation of the possible sentence was incorrect. At no time was the defendant explicitly informed of the elements of the charges against her. The failure of the trial court to advise the defendant of the elements of the offenses and the correct penalties mandated reversal of the conviction.

United States v. Thorne, 153 F.3d 130 (4th Cir. 1998)

When the defendant entered his guilty plea, the trial court failed to advise him of the supervised release term and the nature of supervised release. The assistant United States Attorney reminded the court that a term of supervised release was mandatory (in fact, this provision was contained in the plea agreement), but the trial judge failed to ask the defendant, after the AUSA said this, whether he still wanted to enter a plea, and the court never advised the defendant what supervised release meant.

Thompson v. United States, 111 F.3d 109 (11th Cir. 1997)

A district court must advise the defendant, after sentencing, of his right to appeal, and the court’s failure to do so will require the court to re-sentence the defendant, even if it is shown through independent evidence that the defendant was aware of his right to appeal. This decision did not survive the Supreme Court’s decision in Peguero v. United States, 119 S. Ct. 961 (1999).

United States v. Siegel, 102 F.3d 477 (11th Cir. 1996)

The trial court failed to explain to the defendant that his guilty plea to certain §924(c) counts involved mandatory sentences that were required to be served consecutively to other sentences being imposed. This was a reversible Rule 11 violation.

Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995)

The defendant was on parole from a federal sentence when he was arrested by state agents on a drug charge. At the beginning of his state trial, he entered into a plea agreement which provided that he would plead guilty in exchange for receiving a ten-year sentence to run concurrent with his federal parole violation sentence. After the plea was entered, the federal government declined to revoke his parole, returning him to state custody. The government indicated that his federal parole would be revoked after he served his state sentence. Because it was clearly the defendant’s view that the sentences would run concurrent, this amounted to an involuntary plea of guilty. A voluntary plea requires an awareness of the consequences of the plea. Moreover, his counsel rendered ineffective assistance of counsel.

United States v. Hourihan, 936 F.2d 508 (11th Cir. 1991)

The trial court failed to advise the defendant that his mandatory minimum sentence for this marijuana offense was five years incarceration. Advising the defendant that he was facing a maximum of five to forty was erroneous. The court also advised that the Guideline range was 63 to 78 months; this, however, did not correctly note that there was a five-year statutory mandatory minimum sentence. The incorrect guilty plea advice required vacating the plea. This decision pre-dates United States v. Dominguez Benitez, 542 U.S. 74 (2004).