United States v. Abelardo Elenes Gastelum

I. INTRODUCTION

On May 13, 1992, Abelardo Elenes Gaste-lum pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute ( 21 U.S.C. § 846 ), and one count of possession of cocaine with intent to distribute ( 21 U.S.C. § 841 (a)(1)). Although Fed.R.Crim.Pro. 11(c)(3) requires a district court to inform a defendant of certain constitutional rights “before accepting a plea of guilty,” the court below did not inform Gastelum of those rights until after it had already accepted his guilty plea. The court tried to correct its mistake by subsequently informing Gastelum of his rights. However, the court never gave Gastelum the opportunity to withdraw his guilty plea and to plead anew.

We conclude the district court violated Rule 11(c)(3) by failing to inform Gastelum of his rights until after it had already accepted his guilty plea. We also conclude that the district court’s error was not harmless under Rule 11(h). Accordingly, we are required to VACATE Gastelum’s conviction and plea and to REMAND in order to afford him an opportunity to enter a new plea.

II. FACTS

On May 13, 1992, Abelardo Elenes Gaste-lum pleaded guilty to one count of conspiracy to possess…

dissenting:

I dissent. The court placed the defendant under oath and inquired of him about his age, education, mental condition, use of drugs, satisfaction with the service of his attorney, explained to him the maximum penalties, asked about promises or inducements of any kind, and reviewed the factual basis for his plea. The defendant pleaded guilty to each count. The record then shows:

You have a right to a public and speedy trial, which means that 12 people from the community will be brought here, that you and your attorney will have the ability to participate in the selection of those persons to assure their lack of bias. In that process of selecting the jury, those jurors, once they are selected, will be told that you have a privilege against self-incrimination, which means you don’t have to say anything at the trial, you don’t have to take the witness stand, that that cannot be held against you. The jury will be instructed that you never *1001 have the duty to prove anything, and that the government is always under the burden to prove beyond a reasonable doubt that you are guilty. By entering a plea of guilty, as you have done now, you are giving up those rights and…

16 F.3d 996 UNITED STATES of America, Plaintiff-Appellee, v. Abelardo Elenes GASTELUM, Defendant-Appellant. No. 92-10492. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 10, 1993. Decided Feb. 9, 1994. John P. Balazs, Federal Public Defender's Office, Fresno, California, for the defendant-appellant. Kathleen A. Servatius, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: REINHARDT and LEAVY, Circuit Judges, and MERHIGE, * Senior District Judge. REINHARDT, Circuit Judge: I. INTRODUCTION 1 On May 13, 1992, Abelardo Elenes Gastelum pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute ( 21 U.S.C. Sec. 846 ), and one count of possession of cocaine with intent to distribute ( 21 U.S.C. Sec. 841 (a)(1)). Although Fed.R.Crim.Pro. 11(c)(3) requires a district court to inform a defendant of certain constitutional rights "before accepting a plea of guilty," the court below did not inform Gastelum of those rights until after it had already accepted his guilty plea. The court tried to correct its mistake by…