Post-Conviction Relief for Immigrants

Rule 11 provides, inter alia, that “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”[201]  As the Supreme Court explained:

[I]n addition to directing the judge to inquire into the defendant’s  understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea.  The judge must determine ‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.’  Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to ‘protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’  McCarthy v. United States, 394 U.S. 459, 467 (1969) [footnotes, citing Advisory Committee notes, omitted]. 

If, by the time of sentence, it is known that the defendant’s conduct did not “fall within the charge,” this precludes any judicial determination of a factual basis for the plea in accordance with Rule 11.[202]

            The court’s duties under Rule 11 — including the duty to confirm that there is a factual basis for the plea — continue through the time of sentencing.  A guilty plea is not final until sentence is pronounced and judgment entered.[203]  Thus, even if, at the time a plea is taken, the court determines that the plea is factually supported, Rule 11 is violated if that initial determination is later undermined by other facts that have appeared prior to sentencing.[204]  Davis is particularly on point.  In that case, the defendant pled guilty to possessing a stolen treasury check, knowing it had been stolen.[205]  At sentencing, she explained that she had been given the check by an acquaintance who asked her to cash it, claiming that it was his wife’s but that she was hospitalized and unable to negotiate it.[206]  The defendant did not realize that it was actually stolen until after she cashed it, and the acquaintance gave her $7.00 for doing so.  She pled guilty because she felt she had done the wrong thing — but she did not in fact have the requisite mens rea.[207]  Although her lawyer (after raising some concern about the plea) agreed to go ahead with the sentencing, the court of appeal vacated the conviction, holding that — given the facts before him — the district judge did not and could not make the determination required by Rule 11.[208]

[201] F.R.Crim.P., Rule 11(b)(3) (2002).  This provision has been part of Rule 11 since its adoption, although its language and placement within the Rule has changed slightly over the years. 

[202] United States v. Davis, 493 F.2d 502, 503-04 (5th Cir. 1984).

[203] United States v. Douglas, 974 F.2d 1046, 1048 n.2 (9th Cir. 1992) [citations omitted].

[204] United States v. Davis, 493 F.2d at 503-04; see also McCarthy v. United States, 394 U.S. at 464-67; United States v. Lowery, 60 F.3d 1199, 1204-05 (6th Cir. 1995).

[205] United States v. Davis, 493 F.2d at 503.

[206] Id. at 503-04.

[207] Ibid.

[208] Id. at 504-05.  Similarly, in McCarthy and Lowery the defendants entered what appeared to be sincere guilty pleas and then made comments at sentencing that suggested that they did not in fact commit all of the elements of the charged offenses.  Each case was reversed on the basis that Rule 11 was not satisfied, albeit on the slightly different ground that the trial court could not have determined that the defendant did not fully understand the nature of the charges to which he had pled.  McCarthy, 394 U.S. at 463-64; Lowery, 60 F.3d at 1204-05.