Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

Juan Bautista-Arguello ("Bautista") appeals his sentence under the United States Sentencing Guidelines, following a guilty plea for possessing 77.58 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a). Bautista contends, first, that the district court erred by refusing to grant a two-level downward adjustment based upon his acceptance of responsibility, second, that he is entitled to a two-level downward adjustment based upon his minor role in the offense, and third, that the district court committed reversible error by failing to inform him of the maximum possible sentence allowed prior to accepting his guilty plea. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We reverse because Rule 11 was violated.

ACCEPTANCE OF RESPONSIBILITY

Bautista contends that the district court erred by refusing to reduce his base offense level for acceptance of responsibility. He argues that the district court overstated the requirements for a downward adjustment based on an acceptance of responsibility, and that his guilty plea, his "admission" that he suspected the truck contained contraband and the consistency of his story entitle him to a downward adjustment.

We review for clear error whether a defendant has accepted responsibility for a crime. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990); see United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990) (district court's decision should not be disturbed unless it is without foundation). A downward adjustment is warranted if "the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct...." U.S.S.G. Sec. 3E1.1. The defendant has the burden of showing acceptance of responsibility. United States v. Howard, 894 F.2d 1085, 1089-90 and n. 4 (9th Cir. 1990).

Here, the district court found Bautista's story incredible. The presentence report ("PSR"), which the court adopted, did not recommend an adjustment for acceptance of responsibility because the probation officer believed that Bautista mitigated his involvement in the offense. The court noted that Bautista was not forthcoming with the court during the plea hearing and after evaluating the entire record stated, "insofar as I am concerned, I don't find that [Bautista's statement is] a full and complete statement of responsibility" (RT 1/18/90 at 24). Based on these findings, the court's refusal to reduce Bautista's base offense level for acceptance of responsibility was not clearly erroneous. See Gonzalez, 897 F.2d 1018, 1020 (9th Cir. 1990).

MINOR PARTICIPANT STATUS

Bautista argues that he is entitled to a reduction in his base offense level for his minor participation in the offense under U.S.S.G. Sec. 3B1.2.

We review for clear error the district court's determination that a defendant is not entitled to downward adjustment for his role in the offense. Howard, 894 F.2d 1085, 1088 (9th Cir. 1990). The defendant carries the burden of proving his minor role by a preponderance of the evidence. Id., 894 F.2d at 1089-90. The defendant's uncorroborated assertions that he is a minor participant do not automatically qualify him for a downward adjustment. United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990).

Here, Bautista failed to persuade the district court by a preponderance of the evidence that he was a courier or "mule" in the operation. The district court concluded that Bautista's "story does not make sense. And that fits not only into the minor participant, but the acceptance of responsibility. I mean, I can't find--because that story really defining his relationship with the group is not, apparently, credible" (RT 1/18/90 at 31). The district court, relying in part on the PSR's findings, questioned Bautista's degree of involvement and discredited his explanation that he was merely a paid driver. The district court also noted that Bautista failed to provide useful information about other participants, if any, involved in the offense.

Accordingly, the district court concluded that it was inappropriate to reduce Bautista's base offense level for minor participation. This conclusion is not clearly erroneous. See Rigby, 896 F.2d at 394.

VALIDITY OF GUILTY PLEA

Bautista contends, for the first time, that the district court violated Fed. R. Crim. P. Rule 11 by failing to inform him of the twenty year maximum sentence and argues that his sentence and plea should be vacated. When a party raises an issue on appeal that was not raised before the district court, we review for plain error. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir. 1989).

Rule 11 requires that the district court "address the defendant personally in open court" before accepting a plea of guilty. See Fed. R. Crim. P. 11(c). The district court must inform the defendant of "the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, ... and the maximum possible penalty provided by law, including the effect of any ... term of supervised release...." Fed. R. Crim. P. 11(c) (1); see United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372 (9th Cir. 1988). Supervised release is cumulative to any prison term imposed and thus expands the maximum possible sentence. Sanclemente-Bejarano, 861 F.2d at 209; see also United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir. 1987).

A defendant's guilty plea may be valid even if the district court fails to follow Rule 11, so long as the variance amounts to harmless error. Fed. R. Crim. P. 11(h); United States v. Kearney, 750 F.2d 787, 790 (9th Cir. 1984). "Our analysis of harmless error under Rule 11 has generally turned on whether the defendant knew before pleading guilty that he could be sentenced to a term as long as the one he eventually received." United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988); see Fed. R. Crim. P. 11(h) Advisory Committee's notes to 1983 amendment (suggesting that harmless error may be found "where the ... judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings."); cf. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372 (9th Cir. 1988) (error not harmless where district court failed to state any maximum penalty).

Here, prior to accepting Bautista's plea, the district court did not inform Bautista that the maximum penalty for the stated offense was twenty years. Instead, the district court asked Bautista what he understood the maximum penalty to be, to which Bautista replied "five years." The district judge apparently was not aware of Bautista's misunderstanding and, in two instances, promised Bautista that she would not impose a sentence greater than five years. Thus, the district court failed to comply with Rule 11(c) (1). See Jaramillo-Suarez, 857 F.2d at 1372.

The district court's omission was not harmless because it imposed a sentence, 41 months imprisonment followed by three years of supervised release, that could exceed five years.¹  For this reason, Bautista's guilty plea was not knowing and voluntary and he should have the opportunity to plead anew. See Sharon, 812 F.2d at 1234.

REVERSED AND REMANDED.