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UNITED STATES v. REED

June 3, 1993

UNITED STATES OF AMERICA,
v.
KEITH REED, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Defendant Keith Reed has moved to withdraw his guilty plea, entered on October 14, 1992, to a one count charge of unlawful possession with the intent to distribute five grams or more of cocaine base. Because the Rule 11 colloquy failed properly to inform defendant of the meaning and effect of supervised release, defendant's motion to withdraw his plea is granted.

 I. FACTS

 Defendant and his brother and sister originally were charged, in a three count indictment, with distribution of cocaine base and possession with intent to distribute five grams or more of cocaine base. On the morning of July 27, 1992, the scheduled trial date, defendant and his brother arrived at the Court intoxicated and were incarcerated for 24 hours, upon the motion of their counsel. Following this 24 hour period, defendant exhibited delirium tremens. His trial accordingly was severed. On August 5, 1992, he was ordered to the custody of the Bureau of Prisons ("BOP") for a psychiatric and psychological examination, pursuant to 18 U.S.C. § 4241, et seq., to determine his competency to stand trial.

 In a report dated September 10, 1992, the BOP mental health staff diagnosed defendant as suffering from alcohol abuse and antisocial personality disorder. The report concluded, however, that Reed was competent to stand trial. See Forensic Evaluation dated Sept. 10, 1992, at 5. By a letter dated October 6, 1992, the BOP warden informed the Court that although defendant suffered from severe alcohol abuse and had borderline intellectual functioning (full scale intelligence score of 73), he was not suffering from a mental disease or defect rendering him incompetent to stand trial. Trial accordingly was rescheduled for October 14, 1992.

 On the morning of October 14, 1992, just prior to the commencement of trial, defendant's counsel, Robert Werdig, informed the Court that defendant was interested in entering a guilty plea. Defense counsel asked for a fifteen minute recess, during which time he discussed the guilty plea with the prosecution and defendant. When the Court reconvened, the Court inquired of Werdig in the presence of Reed as follows:

 COURT: Have you advised Mr. Reed of his exposure to sanctions; that is, how much his sentence might be?

 WERDIG: Mr. Reed has been advised that the statutory minimum for possession of this amount of drugs is between five and 40 years, but that due to prior convictions, there is an enhancement provision of 21 U.S.C. § 841(b)(1) -- 841(a)(b) -- whatever the provision is that's in the indictment -- that he is subject to a ten-year mandatory to life.

 COURT: Ten to life. And the minimum would be ten?

 WERDIG: Yes, Your Honor.

 Transcript of Plea Hearing dated October 14, 1992 ("Tr.") at 5. The prosecution confirmed that Reed was facing a 10 year minimum sentence. The Court inquired what period of supervised release would be required. Werdig stated he did not know the period of supervised release "offhand." Upon investigating, he responded that Reed was facing an eight year minimum of supervised release -- "four years in the absence of a prior conviction and if there was such a prior conviction . . . eight years." Tr. at 6.

 The Court then advised Reed of the rights he would waive in entering a plea, pursuant to the requirements of Rule 11. Defendant indicated no one had threatened or coerced him into entering the plea and no promises had been made to him. Tr. at 12. The Court counseled Reed regarding the maximum and minimum penalties he was facing, stating as follows:

 Court: You understand that as a result of the plea, you might be sentenced -- you're facing a mandatory ...


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