Seitz, Aldisert and Stahl, Circuit Judges.
The appellant pleaded guilty to the illegal sale of narcotic drugs in violation of 21 U.S.C.A. § 174 and was sentenced to fifteen years imprisonment. Under the provisions of Section 7237 of Title 26, he was not eligible for parole because of previous violations of the narcotics laws.*fn1 He was not advised of this ineligibility prior to entering the plea. This case requires us to decide whether the failure to so advise him vitiates the plea.
The reception of the plea took place in 1962, before the 1966 amendments to Federal Criminal Rule 11 which added the requirement that a guilty plea be entered with an understanding of its "consequences".*fn2 The court below correctly concluded that the addition of this requirement was merely an explicit restatement of existing law and practice and that "the failure to advise a defendant in 1962 of his ineligibility for parole is equatable with a violation of Rule 11 after 1966."*fn3
Following an evidentiary hearing,*fn4 the district court determined that the defendant had not been advised of this ineligibility and "may have believed that he would be eligible for parole." Nevertheless, the court concluded that no prejudice had been sustained by this omission and denied relief.*fn5
After oral argument of the appeal before this Court, the Supreme Court held in McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (April 2, 1969), that non-compliance with Rule 11 in accepting a guilty plea vitiates the plea and necessitates the opportunity to plead anew -- thus adopting the "automatic prejudice" rule of Heiden v. United States, 353 F.2d 53 (9 Cir. 1965). In so doing, the Supreme Court rejected this Court's holdings in Miller v. United States, 356 F.2d 515 (3 Cir. 1966) and United States v. Del Piano, 386 F.2d 436 (3 Cir. 1967) that non-compliance with Rule 11 "does not per se require a vacation of sentence and plea. The inquiry is whether the plea was in fact voluntary." 386 F.2d at 437.*fn6 It was the teaching of Del Piano and Miller which led the district court to conclude that no relief could be granted without a showing of actual prejudice.
But we may not apply the McCarthy rule of "automatic prejudice" to the plea in this case which was entered on September 11, 1962. In Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (May 5, 1969), the Court stated: "We decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their plea was accepted without full compliance with Rule 11."*fn7
Accordingly, it becomes necessary to examine the circumstances surrounding the enty of the plea from the viewpoint of pre- McCarthy standards. In so doing, we have concluded that the appellant's plea was not entered with a proper understanding of its consequences and must therefore be vacated. We reach this conclusion because we regard the test of prejudice applied by the district court as improper.
The court below concluded from its evidentiary hearing that at the time the appellant entered his plea, he was unaware that he would be ineligible for parole.*fn8 The court reasoned, however, that this lack of knowledge was not prejudicial because the actual sentence imposed, even without the right to parole, was less than one-third of the maximum sentence which could have been given. Since federal prisoners must serve one-third of their sentence to be eligible for parole, the court concluded that no actual prejudice was incurred.
The court's reasoning is based on a false conception of "prejudice." Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action. Accordingly, our task is to determine whether it is possible for a second offender in a federal narcotics prosecution to have a complete understanding of the consequences of his plea of guilty when he is unaware that a statute precludes him from eligibility for parole.
The Supreme Court has consistently applied stringent standards for testing the validity of a plea of guilty. These requirements, recently reviewed by this Court in United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3 Cir. 1968), emphasize that an essential ingredient of a guilty plea is that it be entered "voluntarily after proper advice and with full understanding of the consequences."*fn9 Federal Criminal Rule 11, as constituted before its amendment in 1966, was but a restatement of this constitutional principle.
It is important to note, however, that not every result of a plea is a "consequence" within the meaning of Rule 11. For example, this Court held in United States v. Cariola, 323 F.2d 180 (3 Cir. 1963), that the failure of the trial court to advise a defendant of the possible loss of state voting rights as a result of conviction did not invalidate the entry of a guilty plea.
We are aware of the inclinations of some courts to suggest that the ineligibility for parole should be similarly categorized. In Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436, 441 (1963), cert. denied 376 U.S. 957, 84 S. Ct. 978, 11 L. Ed. 2d 975 (1964), the court held that "eligibility for parole is not a 'consequence' of a plea of guilty, but a matter of legislative grace." The same conclusion was reached in ...