Jonas Moody, Appellant, v. United States of America, Appellee, 469 F.2d 705 (8th Cir. 1972)

Appellant, Jonas Moody, was convicted on his guilty plea of two narcotics violations: an unlawful purchase of heroin in violation of 26 U.S.C. § 4704(a) and an unlawful sale of the same drug in violation of Sec. 4705(a). The district court accepted Moody's guilty plea on October 3, 1969, and initially sentenced him to a federal correctional institute to undergo an examination to determine if he might be a likely candidate for rehabilitation under the treatment program provisions of the Narcotic Addict Rehabilitation Act (NARA). 18 U.S.C. § 4252. Following receipt of a negative report on Moody, the district court, on November 21, 1969, sentenced him to imprisonment for a term of eight years on each charge, the sentences to be served concurrently. No appeal was taken, but subsequently, in October of 1971, Moody filed a petition under 28 U.S.C. § 2255 to vacate the sentence which he alleged had been imposed as the consequence of an involuntary guilty plea. In his petition Moody contends that since the sentencing court did not advise him of his ineligibility for parole,¹  this omission tainted the plea and rendered it involuntary. The district court denied relief and Moody has prosecuted this appeal. For the reasons stated below, we reverse.

The parties concede that the sentencing court did not advise Moody that he would be ineligible for parole under the sentence which would be imposed upon the acceptance of his guilty plea. The record shows that on October 3, 1969, the defendant appeared before the court on a change of plea. The brief dialogue which ensued reveals that the court advised the defendant of the potential penalties for each count (a two-to-ten year sentence and possible fine of $20,000 on the purchase-of-heroin count, and a five-to-twenty year sentence and possible fine of $20,000 on the sale-of-heroin count), and ascertained that Moody had received no threat to coerce a change of plea nor promises as to the length of his sentence. Following the court's brief interrogation, the prosecutor stated that the government believed the defendant to be an addict. Counsel for both parties then called the judge's attention to 18 U.S.C. § 4252 (provisions of the NARA). The court directed that the final sentencing await the report called for by this provision.² 

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* * *The report of the NARA study showed Moody to be an addict, but an unlikely subject for rehabilitation. The district court, in sentencing Moody, noted that it was "unfortunate" that he could not qualify for treatment. The court indicated, however, that he would be eligible for parole in less than three years.³  After the time for appeal had run, the court, by letter dated December 23, 1969, advised Moody that " [T]hey do not grant parole on one-third time in narcotic cases."

The question presented by this appeal is whether ineligibility for parole is a "consequence" of a guilty plea and thus a matter of which a federal district judge must inform a defendant before a plea can be accepted by the court under Rule 11, Fed. R. Crim. P. ⁴  In addressing itself to this question, the district court noted that Moody had raised an issue of first impression in this circuit. It stated further that if ineligibility for parole could be deemed a consequence of a guilty plea, the district court would be required to vacate the sentence since, under McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), failure to comply with Criminal Rule 11 requires vacation of such a plea. The district court rejected Moody's contention and held that ineligibility of parole is not a consequence of a guilty plea, relying on cases from the D.C. Circuit, Smith v. United States, 116 U.S. App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S. Ct. 978, 11 L. Ed. 2d 975 (1964), and the Fifth Circuit, Trujillo v. United States, 377 F.2d 266, cert. denied, 389 U.S. 899, 88 S. Ct. 224, 19 L. Ed. 2d 221 (1967), and a dissenting opinion of Judge Stevens from the Seventh Circuit, United States v. Smith, 440 F.2d 521, 527 (1971). In its opinion the district court recognized but declined to follow holdings to the contrary in the First, Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits.⁵ 

Those decisions which support the opinion of the district court characterize ineligibility for parole as a "consequence of the withholding of legislative grace," rather than a "consequence" of a plea of guilty. Smith v. United States, supra, 324 F.2d at 441; Trujillo, supra, 377 F.2d at 269. The dissenting opinion of Judge Stevens in United States v. Smith, supra, 440 F.2d at 529-530, draws a distinction between "consequences of the plea" to the voluntariness of the plea and "consequences of the conviction" which relate to a variety of factors of risk calculation, including an estimate of the sentence and the chances of probation or parole. As to these latter "consequences," Judge Stevens would afford no relief for a mistake in calculation by the defendant unless the acceptance of the guilty plea was basically unfair.

The rationale underlying the view of the majority of the circuits is that a defendant, unaware at the time of entering a plea of guilty that he will be inelgible for probation or parole, does not plead with understanding of the consequences of the plea, since the nature of parole is so well understood that its availability may be regarded as assumed by the average defendant. Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).

In considering the appropriate rule to apply in this circuit, we note that two separate panel decisions in the Fifth Circuit express disapproval of Trujillo and erode its precedential value. The court in Spradley v. United States, 421 F.2d 1043 (1970), granted Sec. 2255 relief to a guilty-pleading narcotics violator who was told by the court that his term of imprisonment could be reduced to one-third of the five-year sentence. The court distinguished Trujillo "in light of [this] inadvertent information" and concluded that Trujillo "ought not to be extended beyond the bare facts of that case." Id. at 1048. In United States v. Farias, 459 F.2d 738 (1972), the Fifth Circuit expressed its preference for the majority rule, but felt itself bound by Trujillo. See also Sanchez v. United States, 417 F.2d 494 (5th Cir. 1969).

We are persuaded to follow the majority rule. We hold that the failure to be advised of ineligibility for parole constitutes a "consequence" of a guilty plea, rendering that plea involuntary under Rule 11, Fed. R. Crim. P.

As to this case, the United States contends that the failure to advise Moody of the unavailability of parole in fact did not amount to any misrepresentation within the purview of Rule 11. This argument proceeds on the basis that Moody could not have been prejudiced since the eight-year sentence received was less than one-third of the maximum possible prison sentence of thirty years on the two-count indictment. Thus, the argument continues, Moody, even if contemplating parole, knew he faced the risk of serving up to ten years imprisonment on the charges to which he pleaded guilty, and therefore the actual sentence fell within the range of his expectations. This argument, even assuming it is material,⁶  is inapposite on the facts of this case.

The record here suggests that the parties expected the sentencing court to consider commitment treatment under the NARA rather than ordinary imprisonment. The prosecutor specifically called Moody's addiction to the attention of the court. The record, too, reflects circumstances under which it would be extremely unlikely that the sentencing judge would assess the maximum sentence authorized by law. The comment made by the Seventh Circuit in United States v. Smith, supra, 440 F.2d at 525, seems appropos:

Ineligibility for parole automatically trebles the mandatory period of incarceration which an accused would receive under normal circumstances. It necessarily follows that it would have an effect on the expected length of detention and would have primary significance in an accused's determination of whether to plead guilty. The purpose of Rule 11 is to insure that an accused does not plead guilty "except with a full understanding of the charges against him and the possible consequences of his plea." (Footnotes omitted).

Under the circumstances here, we cannot say that the failure of the court to advise Moody of parole eligibility did not in fact serve to mislead him.

Reversed and remanded with directions that the conviction be vacated and that Moody be permitted to plead anew. See McCarthy, supra, 394 U.S. at 468-471, 89 S. Ct. 1166.