John D. Guthrie, 35010 v. United States

517 F.2d 416 John D. GUTHRIE, # 35010, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 74-2374. United States Court of Appeals, Ninth Circuit. May 13, 1975. William F. Almon, Yakima, Wash., for petitioner-appellant. Dean C. Smith, U. S. Atty., and Robert S. Linnell, Asst. U. S. Atty., Spokane, Wash., for respondent-appellee. OPINION Before CARTER, WRIGHT and WALLACE, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This is an appeal from the denial of a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 . We affirm. 2 Petitioner was indicted on multiple counts of mail fraud and conspiracy ( 18 U.S.C. §§ 371 and 1341), involved in an oil company credit card scheme. Upon the advice of appointed counsel, he pleaded guilty to two counts of the indictment in return for the dismissal of the remaining charges. 3 After eight months of incarceration, he moved to vacate sentence alleging, inter alia, that his guilty plea was involuntary because he had been misled by counsel as to the nature of the dismissed counts and was not adequately informed as to those to which he pleaded. An evidentiary hearing on the motion was…

This is an appeal from the denial of a motion to vacate, set aside, or correct sentence under 28 U.S.C.' § 2255. We affirm.

Petitioner was indicted on multiple counts of mail fraud and conspiracy [ 18 U.S.C. §§ 371 and 1341], involved in an oil company credit card scheme. Upon the advice of appointed counsel, he pleaded guilty to two counts of the indictment in return for the dismissal of the remaining charges.

After eight months of incarceration, he moved to vacate sentence alleging, inter alia, that his guilty plea was involuntary because he had been misled by counsel as to the nature of the dismissed counts and was not adequately informed as to those to which he pleaded. An evidentiary hearing on the motion was conducted by another district judge to inquire into the merits of the constitutional claim. In that proceeding Guthrie put at issue several contentions which collaterally combine to present the sole question to be addressed on appeal: did the arraigning and sentencing judge comply with Federal Rule of Criminal Procedure 11?

The circumstances surrounding the appellant’s guilty plea are simple. In concert with others, he applied to several oil companies for…

(dissenting):

I respectfully dissent.

The district judge asked Guthrie (1) whether his attorney had advised him pertaining to the indictment, (2) whether he was satisfied with the counsel furnished by his attorney, and (3) whether he had committed the acts charged by the government in counts 1 and 18. Guthrie answered all three questions in the affirmative. The district judge asked Guthrie no other questions concerning his understanding of the charges or the factual basis for his plea.

Rule 11 requires the district judge to establish the factual basis for the plea so that he can determine whether the facts admitted by the defendant amount to commission of the crime to which he wishes to plead guilty. McCarthy v. United States, 394 U.S. 459, 467 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969). In this case, the judge’s third question concerned the factual basis for Guthrie’s guilty plea but it was not adequate. United States v. Youpee, 419 F.2d 1340 (9th Cir. 1969), is not to the contrary. There a one-paragraph information charging wilful and wrongful infliction of grievous bodily harm was read to the defendant. Id. at 1344 n.3. Here, the charges were never explained in any way by the…