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United States v. Allen

filed: October 30, 1986.

UNITED STATES OF AMERICA, APPELLEE
v.
WILLIAM EMANUEL ALLEN, APPELLANT



On Appeal From The United States District Court For The Western District Of Pennsylvania, Pittsburgh, D.C. Crim. Nos. 85-24 and 85-246.

Author: Seitz

Before: SEITZ, ADAMS and STAPLETON, Circuit Judges.

Opinion OF THE COURT

SEITZ, Circuit Judge.

Defendant William Emanuel Allen appeals form a judgment of sentence in the United States District Court for the Western District of Pennsylvania. We have jurisdiction of this appeal under 28 U.S.C. § 1291.

I.

On February 12, 1985, a federal grand jury returned a thirteen count indictment against Allen and two co-defendants based on various drug offenses. In particular, count 10 charged Allen with conducting a Continuing Criminal Enterprise (C.C.E.) in violation of 21 U.S.C. § 848. On November 11, 1985, during the pendency of this indictment, a second indictment was returned charging Allen with various firearm offenses and with possession of cocaine with the intent to distribute.

On January 7, 1986, the district court held a hearing at which Allen changed his plea to guilty on all charges in both indictments. The plea was accepted only after a government agent summarized the United States' evidence against Allen. Throughout the colloquy, Allen indicated some uncertainty whether his conduct fell within the C.C.E. count. Specifically, Allen questioned whether the underlying conduct met the requirement that it be undertaken "in concert with five or more other persons with respect to whom [defendant] occupies a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. § 848(2)(A). Allen did not admit to supervising five people. The government agent, however, testified as to the government's evidence supporting each element of the C.C.E. offense.

After accepting the plea, the district court sentenced Allen to twenty years for the C.C.E. offense. Allen agreed to forfeit his interest in all real and personal property listed in count 10 of the first indictment. Allen also received a special life parole term. All other sentences and probations from these convictions run concurrently with the C.C.E. sentence.

II.

Federal Rule of Criminal Procedure 11 sets out the procedures and conditions for entry of a guilty plea. Rule 11(f) provides:

(f) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

Under Rule 11(f), before entering a judgment on a defendant's guilty plea, the district court must be subjectively satisfied that a factual basis exists for the plea whether or not the defendant admits each substantive element of the charge. See United States v. Dayton, 604 F.2d 931 (5th Cir. 1979). The district court must also find a factual basis for each element of the crime. See United States v. Trott, 779 F.2d 912 (3d Cir. 1986). The court may look to the defendant's own admissions, the government's proffer of evidence or the presentence report in making this determination. See Notes of Advisory Committee on Rules, 1966 Amendment to Rule 11; see also United States v. Trott, 779 F.2d at 914. The purpose of Rule 11(f) is to "protect[] against false pleas, not involuntary ones." United States v. Romanello, 425 F. Supp. 304 (D. Conn. 1975).

The present record is ambiguous whether the district court accepted the plea because it believed the government's presentation provided a factual basis for the plea or because it mistakenly believed Allen had admitted to conduct constituting the supervisory element of the C.C.E. count. The relevant portion of the colloquy follows:

THE COURT: Do you have anything that you want to put on the record, with regard to the testimony of the agent, at this time?

THE DEFENDANT: No; I don't.

(DISCUSSION BETWEEN THE DEFENDANT AND HIS COUNSEL)

THE DEFENDANT: I am not satisfied, Your Honor, with the five people I was supposed to organize and supervise. ...


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