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UNITED STATES v. GUY

February 23, 1978

UNITED STATES of America
v.
Jeffrey GUY



The opinion of the court was delivered by: CAHN

MEMORANDUM

I. INTRODUCTION

 Defendant Jeffrey Guy has moved to vacate his guilty plea. He contends that his plea was not "knowing and voluntary" because at the time he entered the plea I failed to explain to him the meaning of special parole. He further contends that had he understood the meaning of special parole, he would not have pleaded guilty. I find that defendant's position has merit, and accordingly will grant his motion.

 II. FACTS

 Defendant pleaded guilty to one count of conspiracy to distribute heroin on May 24, 1977. *fn1" On June 28, 1977, I sentenced defendant to three years imprisonment, to be followed by three years of special parole pursuant to 21 U.S.C. § 841(b). *fn2" On October 3, 1977, defendant moved Pro se to vacate his guilty plea. I appointed counsel on October 21, 1977, offered defendant and the government an opportunity to present evidence at a hearing on December 29, 1977, and heard oral argument on the same day. *fn3"

 At the guilty plea proceeding pursuant to Fed.R.Crim.P. 11, I attempted to determine that defendant's plea was knowing and voluntary. I advised defendant of the potential sentence he faced in the following manner:

 
The maximum penalty to which I could sentence you is 15 years in prison and $ 25,000 fine plus a three year special parole term. . . .
 
That's the maximum. The minimum sentence would be a probationary period without any fine. So you can see that the sentence here can range from a slap on the wrist to 15 years in jail.

 Notes of Testimony, at 6.

 Defendant contends that my allusion to special parole was inadequate in three respects: first, that I failed to explain that the potential term of special parole was a minimum of three years, with an indefinite maximum; second, that I failed to state the imposition of special parole was mandatory, if I sentenced defendant to any term of imprisonment; and third, that I did not explain that if defendant violated his special parole, he could be reincarcerated for the full term of the parole, rather than for the period of parole remaining at the time of the violation. *fn4" Defendant has filed a sworn affidavit stating that he did not understand the meaning of special parole at the time he pleaded guilty. The affidavit further states that defendant is not guilty of the charge to which he pleaded and that he would not have pleaded guilty had he understood the full consequences of his plea. The government has not contested these facts, contending instead that defendant is entitled to no relief as a matter of law.

 III. PRELIMINARY STATEMENT

 The failure of district courts to inform criminal defendants of the existence of a minimum mandatory special parole term has brought about much litigation. Through June, 1975, most courts which considered the question at issue here established a Per se rule; where a defendant was not properly advised of the meaning of special parole, he was entitled to plead anew. See, e.g., Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975); Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974); United States v. Richardson, 483 F.2d 516 (8th Cir. 1973). Cf. contra, Bell v. United States, 521 F.2d 713 (4th Cir. 1975), Cert. denied, 424 U.S. 918, 96 S. Ct. 1121, 47 L. Ed. 2d 324 (1976); Gore v. United States, 529 F.2d 515 (1975).

 On June 10, 1975, the Supreme Court decided Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2304, 41 L. Ed. 2d 109 (1975). By way of dicta, *fn5" the Court stated:

 
This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements' of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of ...

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