# United States v. Alan Louis Bashara

> Court of Appeals for the Sixth Circuit · August 18, 1994 · 27 F.3d 1174

URL: https://www.frixlaw.com/law-library/cases/9486943

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Alan Louis BASHARA, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 18, 1994
- **Citations:** 27 F.3d 1174; 1994 WL 313504
- **Precedential status:** Published
- **Opinion:** Dissent by Merritt
- **Judges:** Merritt, Guy, Boggs
- **Cited by:** 214 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in United States v. Jose Antonio Caseslorente,defendant-Appellant.
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486943

## How later opinions describe it (automated extraction)

- finding harmless the district court’s failure to state the mandatory minimum where the guidelines range put defendant on notice that he would receive well above the mandatory minimum
- holding that the amount of a wire transfer was properly converted into an equivalent amount of heroin, based upon the price for which the defendant had previously purchased heroin
- holding that six weeks constituted an inordinate delay

## Opinion text

MERRITT, Chief Judge,
dissenting.
The record in this case clearly establishes, and the district court found, that the defendant pled guilty on the specific understanding that the government would not seek a mandatory minimum sentence and that he would not run the risk of subjecting himself to such a sentence. (See Appendix II and R. 50, pp. 113-14.) Both the prosecutor and defendant’s lawyer specifically advised the court at arraignment that no such “special provision” was present in this case. (See Appendix I and R. 37, pp. 4-10.) Upon learning of the risk of a mandatory minimum sentence, the defendant sought to withdraw his guilty plea and proceed to trial.
The district court obviously violated its duty under Rule 11(c), Fed.R.Crim.P. to “inform the defendant of ... the mandatory minimum penalty provided by law....” The language of the rule is mandatory, not within the discretion of the district court. Once the district court learned that it had violated the rule it should have allowed the defendant to withdraw his guilty plea, especially in light of the fact that it is clear that the defendant was misled into believing that there would be no mandatory minimum sentence involved.
The majority finds that the district court was aware of the mandatory minimum and yet failed to inform the defendant of it. Nevertheless, the majority apparently follows the principle that this provision of Rule 11 may be ignored by district judges if the sentence imposed is longer than the mandatory minimum sentence. No other circuit has adopted such a principle. See United States v. Hourihan, 936 F.2d 508, 511 (11th Cir.1991) (in order to invoke harmless error government must show defendant knew independently that she would likely receive mandatory minimum sentence and was not misled); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372 (9th Cir.1988) (same). I do not understand the rationale for such a principle or why we should permit the Rule to be openly violated.
Harmless error cannot simply be based on the court’s assumption that the defendant will be convicted if he is tried and will receive a sentence longer than the mandatory minimum. There would always be harmless error if we make this assumption. The defendant is entitled to exercise his constitutional right to trial by jury after knowing of “the mandatory minimum penalty provided by law.” That is the reason for the Rule. Not only was he not advised in this case; he was affirmatively misled. When a defendant entering a guilty plea is told something that is not true (viz., no risk of a mandatory minimum sentence in this case), I see no “risk of terminological inexactitude,” as the court puts it, in saying that he was “misled.” Here we are denying the defendant the right afforded by the Rule in combination with the Sixth Amendment without offering a reasoned or plausible explanation. Our obligation to the Rule of Law requires more than we are giving the accused in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486943. Public record. Not legal advice.