UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: July 6, 1977.
ALAN GENE KINCADE, APPELLANT,
UNITED STATES OF AMERICA, APPELLEE
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 76-1023.
Aldisert, Rosenn and Hunter, Circuit Judges. Aldisert, Circuit Judge, concurring.
Author: Per Curiam
This is an appeal from the district court's denial, without evidentiary hearing, of Kincade's motion to vacate sentence pursuant to 28 U.S.C. § 2255. In that motion, Kincade argued that his guilty plea was rendered invalid - under Fed. R. Civ. P. 11*fn1 - by the court's failure to inform him that 18 U.S.C. § 3568*fn2 might have an effect on the starting date of any federal sentence imposed upon him. We hold that the possible effects of section 3568 were not "consequences" of Kincade's guilty plea that had to be explained to him under rule 11, as it then read. Therefore, we affirm.
Kincade was charged with fourteen counts of forging and uttering United States Savings Bonds in violation of 18 U.S.C. § 495. On November 4, 1974, he appeared before the district court to enter a guilty plea. Before accepting Kincade's plea, the court inquired into its voluntariness and fully explained the rights Kincade would waive by pleading guilty. The court did not, however, mention 18 U.S.C. § 3568, which in effect provides that a federal sentence shall begin to run only after the prisoner is released from state custody and received at the place of federal detention. After entry of the plea, Kincade was sentenced to five years of imprisonment.
At the time of the federal hearing, Kincade was being held in state custody on charges of forgery, receiving stolen goods, and attempted theft by deception. After the federal hearing, he was indicted, tried, and convicted on those state charges. He was consigned to a county jail to serve his state term and was released from state custody on March 12, 1976.
On March 18, 1976, Kincade was committed to the Federal Correctional Institute at Danbury, Connecticut, to begin serving his federal sentence. He thereafter filed the motion at issue in this case, alleging that his guilty plea had been invalid. He contended that the operation of section 3568, which delayed the commencement of his federal sentence for the seventeen months he spent in state prison, was a "consequence" of his plea that the court, under rule 11, was required to explain to him.
It has never been held that rule 11 required the district court to explain every conceivable "consequence" of a guilty plea to the defendant. Most cases drew a distinction between "direct consequences" and "collateral consequences" - only the former falling within rule 11 requirement. See, e.g., Fruchtman v. Kenton, 531 F.2d 946, 948 (9th Cir.), cert. denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976).
Courts have differed as to whether the operation of section 3568 is a direct consequence and must be explained. Compare United States v. Myers, 451 F.2d 402 (9th Cir. 1972) (operation of section 3568 must be explained) and Love v. United States, 392 F. Supp. 1113 (E.D. N.C. 1975) (same), with Faulisi v. Daggett, 527 F.2d 305 (7th Cir. 1975) (operation of section 3568 need not be explained) and Williams v. United States, 500 F.2d 42 (10th Cir. 1974), (same) and Tindall v. United States, 469 F.2d 92 (5th Cir. 1972) (same).*fn3
Kincade contends that we must hold that the possible effect of section 3568 was a direct consequence in terms of rule 11. He points out that the statute can, by virtue of a subsequent state conviction, cause the postponement of service of a federal sentence, thereby increasing the overall time of incarceration. The federal court, adds Kincade, lacks discretion to prevent the operation of the statute. Under Berry v. United States, 412 F.2d 189 (3d Cir. 1969), says Kincade, a consequence which affects the term of incarceration and as to which the sentencing court lacks discretion must be considered direct.
In the first place, not all possible variations in time of incarceration amount to direct consequences. See, e.g., United States v. Hawthorne, 532 F.2d 318, 321 (3d Cir. 1976), cert. denied, 429 U.S. 894, 97 S. Ct. 254, 50 L. Ed. 2d 177 (1977) ("uncertainty as to the possible sentence that might follow from trial of counts to which the defendant has not pleaded guilty cannot invalidate a guilty plea as to that count to which the defendant has pleaded guilty"). Furthermore, consequences - no matter how unpalatable - which are not related to the length or nature of the federal sentence cannot be considered direct consequences.*fn4 In the instant case, section 3568 had no effect whatever upon the length of the federal sentence. The statute did operate to increase the length of Kincade's overall incarceration, but not by modifying his federal punishment.
Finally, the district court's lack of discretion with respect to the operation of section 3568*fn5 has no bearing on the length of the federal sentence. The court remains unfettered by section 3568 in selecting a sentence for the federal offense of which defendant was convicted; the statute operates automatically merely to delay the start of the sentence chosen. It does not change the nature of the federal sentence which results from the guilty plea.
We hold, therefore, that the possible application of section 3568 was not a consequence of Kincade's guilty plea that had to be explained to him under rule 11. The judgment of the court below will be affirmed.
ALDISERT, Circuit Judge, concurring.
I concur in the result reached by the court. Here the defendant appeared before the federal court for the entry of a guilty plea prior to the 1975 amendment of Rule 11, F.R. Cr. P. Although he was in state custody at the time, he had not yet been indicted, tried, convicted or sentenced for any state offense. Under these circumstances, I find no duty on the part of the district court to explain that any federal sentence would begin to run upon completion of any possible state sentence that might be pronounced.