PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN MARTINEZ, a/k/a Jesus Garcia,
a/k/a Roberto Gonzalez,
Defendant-Appellant.

No. 00-4245

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-145)
Argued: September 28, 2001
Decided: January 17, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the majority opinion, in which Judge Traxler joined. Judge Luttig wrote a concurring
opinion.

COUNSEL
ARGUED: Paul Craig Pooley, Durham, North Carolina, for Appellant. Clifton Thomas Barrett, Assistant United States Attorney/Chief,
Criminal Division, Greensboro, North Carolina, for Appellee. ON
BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro,
North Carolina, for Appellee.

UNITED STATES v. MARTINEZ

OPINION
KING, Circuit Judge:
Appellant Juan Martinez challenges his convictions and sentence in
the Middle District of North Carolina on one count of conspiring to
distribute cocaine and marijuana, in violation of 21 U.S.C. 846, and
on four counts of money laundering, in violation of 18 U.S.C.
1956(a)(1). Martinez makes two basic contentions on appeal: first,
that the district court, in four separate contexts, committed reversible
error in accepting his guilty pleas, and, second, that the statute which
forms the object of his conspiracy conviction, 21 U.S.C. 841, is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). We conclude that these contentions are without merit, and we
affirm.
I.
On May 25, 1999, Martinez, who was also known as Roberto Gonzalez and Jesus Garcia, was indicted, along with five others, on various charges relating to a drug distribution scheme in North Carolina
and elsewhere. The indictment contained sixteen counts, eight of
which (Count One plus Counts Eight through Fourteen) were against
Martinez. In Count One, Martinez and his co-defendants were
charged with conspiring, in violation of 21 U.S.C. 846, to commit
offenses involving controlled substances, that is, the distribution of
cocaine and marijuana, in violation of 21 U.S.C. 841(a)(1). The
remaining seven charges against Martinez related to violations of the
money laundering statute, 18 U.S.C. 1956(a)(1). The grand jury
issued a superseding indictment a month later, which changed Count
One only and named two additional co-conspirators. The superseding
indictment, which is the operative charge in this appeal (the "Indictment"), made no substantive changes to the eight charges levied
against Martinez.
On November 29, 1999, the Government and Martinez entered into
a plea agreement, which was filed with the court on that same day.
The plea agreement provided, inter alia: (1) that Martinez would
plead guilty to the conspiracy charge (Count One) and to four separate charges of money laundering (Counts Nine, Ten, Twelve, and

UNITED STATES v. MARTINEZ

Fourteen); (2) that Martinez faced (a) on Count One, a minimum sentence of ten years imprisonment, a maximum possible sentence of
life, and a maximum possible fine of $4 million; and (b) on each of
the money laundering charges, a maximum possible sentence of
twenty years imprisonment and a maximum possible fine of
$500,000; (3) that, upon acceptance by the court of the guilty pleas
tendered by Martinez, the Government would not oppose Martinezs
motion to dismiss the three other money laundering counts against
him (thereby reducing his exposure to prison by a total of sixty years
and his exposure to fines by the sum of $1.5 million); and (4) that the
Government would recommend to the district court a decrease in
Martinezs offense level by 1 additional level pursuant to
3E1.1(b)(2) of the Sentencing Guidelines, if Martinez qualified for
a 2-point decrease in offense level under 3E1.1(a), and if his offense
level prior to the operation of 3E1.1(a) was 16 or greater.1
At the Rule 11 plea proceeding conducted on November 29, 1999,
Martinez acknowledged to the court that he had fully discussed with
his counsel both the various charges against him and the terms of his
plea agreement.2 Martinez also acknowledged to the court that he
understood the nature of the charges against him; he advised the court
that he was not under the influence of alcohol or drugs; and he
asserted that he was competent to plead.3
1

Pursuant to 3E1.1 of the Sentencing Guidelines, a defendant can

receive a reduction in offense level for acceptance of responsibility.
Under 3E1.1(b), a defendant who has already qualified for the initial
decrease in offense level under 3E1.1(a) and who has committed a sufficiently severe crime will receive an additional decrease in offense level
if it is determined that he gave certain types of assistance to the Government in the investigation or prosecution of his own misconduct.
2
Plea proceedings are governed by the provisions of Rule 11 of the
Federal Rules of Criminal Procedure.
3
Rule 11(c) provides for the following "Advice to Defendant" in plea
proceedings:
Before accepting a plea of guilty or nolo contendere, the court
must address the defendant personally in open court and inform
the defendant of, and determine that the defendant understands,
the following:

UNITED STATES v. MARTINEZ

Pursuant to the provisions of Rule 11(c), the court informed Martinez that, on the conspiracy charge in Count One, he faced a mandatory minimum sentence of ten years imprisonment, a potential
maximum sentence of life, and the imposition of a fine of up to $4
million. He was further informed by the court that the maximum possible sentence on each of the money laundering charges was twenty
years imprisonment plus a fine of $500,000. Martinez acknowledged
his understanding of the penalties he faced on the charges against him
by virtue of his guilty pleas. The court also advised Martinez that it
was not bound by the terms of his plea agreement with the Government, and that the final disposition of his case rested solely with the
court. The court informed Martinez that the Indictment did not, in
Count One, allege specific amounts of marijuana or cocaine, and it
advised Martinez that the quantity of controlled substances involved
in Count One would be determined at sentencing. Martinez acknowledged to the court, under oath, his understanding of all these matters.
Before concluding the Rule 11 proceeding, the court inquired
whether the Government intended to present a factual basis for the
guilty pleas. When the Government requested that the factual basis be
withheld until sentencing because it was lengthy, the court acceded
to its request.4
On March 3, 2000, the district court conducted Martinezs sentencing proceedings. In these proceedings, the Government made no
objection to the Presentence Report ("PSR") of the Probation Officer,
and Martinez did not contest the drug quantities determined in the
(1)

the nature of the charge to which the plea is offered, the

mandatory minimum penalty provided by law, if any, and
the maximum possible penalty provided by law, including
the effect of any special parole or supervised release term
....
4
Rule 11(f) mandates that "[n]otwithstanding 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." Because judgment is not entered until after sentencing, a court
may defer the finding of a factual basis for the plea until that time.
United States v. Mitchell, 104 F.3d 649, 651 (4th Cir. 1997).

UNITED STATES v. MARTINEZ

PSR. The PSR determined that Martinez was accountable, under

Count One, for 10,000 grams of cocaine hydrochloride and 317,520
grams of marijuana. Martinez also agreed to the criminal history
upward departure recommended in the PSR. The district court found
that an offense level of 35 and a criminal history category of IV
applied to Martinez. The court then sentenced Martinez to 235
months imprisonment (nineteen years and seven months) plus five
years supervised release on the conspiracy charge. He was also sentenced to serve three years supervised release on each of the four
money laundering charges, to run concurrently with the sentence
imposed for conspiracy.5 Pursuant to the plea agreement, the court
granted Martinezs motion to dismiss the remaining charges against
him, that is, Counts Eight, Eleven, and Thirteen of the Indictment.
Six days later, on March 9, 2000, Martinez filed in the district court
a pro se motion, entitled "Motion to Withdraw Counsel," in which he
indicated dissatisfaction with the work of his court-appointed lawyer,
and by which he requested that a new lawyer be appointed for the
appeal of his case. This pro se motion was deemed by the district
court to constitute a notice of appeal.6 In his motion, Martinez indicated an intention to challenge his sentence on the basis of mistakes
in the PSR and in the calculation of his sentence under the Guidelines.
Thereafter, on June 26, 2000, when the Supreme Court rendered its
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Martinez
was provided with an additional basis for appeal. In Apprendi, the
Supreme Court held that any facts, except prior convictions, that
increase the punishment for an offense beyond the maximum authorized in the statute criminalizing the conduct constitute "by definition
elements of a separate legal offense." Apprendi, 530 U.S. at 483
5

The court, after determining that Martinez lacked the ability to pay,
did not impose a fine on him.
6
As a notice of appeal, Martinezs motion of March 9, 2000, was premature because the district court did not enter its judgment until March
16, 2000. Under Rule 4(b)(2) of the Federal Rules of Appellate Procedure, however, "[a] notice of appeal filed after the court announces a
decision, sentence, or order but before the entry of the judgment or
order is treated as filed on the date of and after the entry." In any
event, a second notice of appeal was filed on Martinezs behalf on March
20, 2000.

UNITED STATES v. MARTINEZ

n.10. Accordingly, such sentence-enhancing facts must be charged in

the indictment, tried to the jury, and proven beyond a reasonable
doubt. Id. at 490. Prior to Apprendi, numerous federal and state statutes, including 21 U.S.C. 841, had been enacted with sentencing
provisions that allowed a court to increase a defendants sentence on
the basis of facts (such as, in the case of 841, drug quantity) found
by the court by a preponderance of the evidence.
In the wake of Apprendi, which was decided prior to briefing in
this case, Martinez altered the nature of his appeal.7 He now asserts
a total of five challenges to his convictions and sentence, four of
which relate to his Rule 11 proceedings. His final contention is a constitutional challenge to 21 U.S.C. 841. Martinez first asserts that the
Rule 11 errors affected his decision to enter into his plea agreement,
and he maintains that he would not have entered into the agreement
if the district court had properly conducted those proceedings. Specifically, Martinez maintains that the district court committed Rule 11
error by (1) incorrectly informing him of his possible sentence on the
conspiracy charge in Count One; (2) failing to properly advise him of
the elements of the conspiracy charge; (3) failing to inform him that,
if the sentencing recommendation of the Government was not
accepted by the court, he would not have cause to withdraw his pleas;
and (4) failing to establish a factual basis for his guilty pleas. Finally,
Martinez contests his convictions and sentence on the basis that
Apprendi rendered 21 U.S.C. 841, the substantive statute forming
the object of the Count One conspiracy, unconstitutional. We possess
jurisdiction over this appeal pursuant to 28 U.S.C. 1291.
II.
Before we address the merits of Martinezs contentions, we must
consider a predicate procedural issue concerning the applicable standard of review. Because Martinez did not seek to withdraw his guilty
plea in the district court, we review his alleged Rule 11 errors under
7

Martinez is able to raise Apprendi issues on appeal because newly

declared constitutional rules are applicable to criminal cases pending on
direct appeal. Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987). We
have previously held that Apprendi constituted a newly declared constitutional rule. United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001).

UNITED STATES v. MARTINEZ

the standard applicable to forfeited error, i.e., assertions of error

raised for the first time on appeal. The courts addressing this question
disagree over whether such assertions are to be reviewed under a
plain error standard or a harmless error standard. This question is one
of first impression in our circuit, and we must resolve the question
before we consider the substance of Martinezs Rule 11 claims.8
As a general proposition, of course, it is well established that forfeited error is reviewed under a plain error standard. See Fed. R.
Crim. P. 52(b) ("Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the
court."); United States v. Olano, 507 U.S. 725, 731-32 (1993). Under
plain error review, we may notice an error that was not preserved by
timely objection only if the defendant can demonstrate (1) that an
error occurred, (2) that it was plain error, and (3) that the error was
material or affected the defendants substantial rights. Olano, 507
U.S. at 732. Even when these three conditions are satisfied, we retain
discretion whether to correct the error, which we should exercise only
if the "error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id.
Under the provisions of Rule 11(h), errors in plea proceedings are
normally evaluated under a harmless error standard. Fed. R. Crim. P.
11(h) ("Any variance from the procedures required by this rule which
does not affect substantial rights shall be disregarded."); see United
States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). Under harmless
error review, "[a]ny deviation from the requirements of Rule 11 is
reversible unless the government demonstrates that it was harmless." United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir.
1995). The harmless error analysis seemingly mandated by Rule 11(h)
would, of course, be more favorable to Martinez than the plain error
analysis of Rule 52(b). We must therefore determine whether Rule
11(h) supersedes Rule 52(b) in this situation, and we must ascertain
8

In United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995), we

applied harmless error review to asserted Rule 11 errors, where the
defendant had unsuccessfully sought to withdraw his plea in district
court. Because Goins made a motion to withdraw his guilty plea, his
appeal did not involve forfeited error. Our decision in Goins therefore
has no bearing on the standard of review to be applied here.

UNITED STATES v. MARTINEZ

whether it mandates harmless error review for asserted errors in Rule

11 proceedings, even those a defendant failed to raise in the district
court.
Several of our sister circuits have addressed this issue, and they
disagree on the question of whether harmless error or plain error analysis governs. A majority, consisting of the First, Sixth, Seventh, and
Eleventh Circuits, have concluded that the plain error analysis of Rule
52(b) represents the correct approach. See United States v. Bejarno,
249 F.3d 1304, 1306 (11th Cir. 2001); United States v. Driver, 242
F.3d 767, 769 (7th Cir. 2001); United States v. Gandia-Maysonet, 227
F.3d 1, 5 (1st Cir. 2000); United States v. Bashara, 27 F.3d 1174,
1178 (6th Cir. 1994). Two courts, however, the Ninth and the District
of Columbia Circuits, have decided that "the Rule 11(h) harmless
error standard applies to all Rule 11 errors, regardless of whether
they were ever raised before the district court." United States v.
Odedo, 154 F.3d 937, 940 (9th Cir. 1998); see also United States v.
Vonn, 224 F.3d 1152, 1155 (9th Cir. 2000), cert. granted, 121 S.Ct.
1185 (February 26, 2001); Lyons, 53 F.3d at 1322 n.1. As explained
below, we join the majority and conclude that plain error analysis is
the proper standard for review of forfeited error in the Rule 11 context.
The courts considering the question of the proper standard of
review on Rule 11 issues have generally agreed that, prior to the promulgation of Rule 11(h) in 1983, there was some confusion over what
constituted reversible error under Rule 11. The Supreme Courts decision in McCarthy v. United States, 394 U.S. 459 (1969), had led several courts to believe that, on direct appeal, all violations of Rule 11
constituted reversible error. See Driver, 242 F.3d at 770; GandiaMaysonet, 227 F.3d at 5-6; Odedo, 154 F.3d at 940. Rule 11(h) was
added to clarify that Rule 11 error should not be deemed prejudice per
se. Driver, 242 F.3d at 770; Gandia-Maysonet, 227 F.3d at 5-6;
Odedo, 154 F.3d at 939.
The courts addressing the standard of review question disagree,
however, on whether Rule 11(h) merely incorporated the general standards of review established in Rule 52, or whether Rule 11(h) established a unique standard of review to be applied only in the Rule 11
context. The circuits supporting the proposition that plain error review

UNITED STATES v. MARTINEZ

governs, in particular the First and the Seventh Circuits, stress that
"Rule 11(h) was added by amendment for a narrow purpose," i.e., it
was to demonstrate that Rule 52 applied to Rule 11 errors. GandiaMaysonet, 227 F.3d at 6; see also Driver, 242 F.3d at 770. The courts
that see harmless error review as the proper standard, in particular the
Ninth Circuit, contend that the provisions of Rule 11(h) represent a
rejection of "McCarthys extreme sanction of automatic reversal
where technical violations occur." Odedo, 154 F.3d at 940. Both sides
to this debate buttress their positions with references to structural considerations.
The First and Seventh Circuits contend, for example, that employing the traditional "raise or waive principle, here as with other kinds
of error, serves obvious interests of fairness and judicial economy."
Gandia-Maysonet, 227 F.3d at 5. They assert that a plain error standard, by inducing defendants to properly raise their contentions in district court, will enable "the district court to build the sort of record
that is essential to understanding the effect of any noncompliance
with Rule 11." Driver, 242 F.3d at 770. They also note that encouraging a defendant to move, in the first instance, to withdraw his plea in
district court will "dispel uncertainty about whether the defendant
really wants to withdraw his plea, give up the consideration received
for the plea bargain . . . and go to trial." Id. (emphasis in original).
In contrast, the Ninth Circuit stresses that the provisions of Rule 11
place obligations on the judge, not the defendant; it is the judges duty
to "comply with the requirements of the rule in order to assure that
the plea is knowing and voluntary." Odedo, 154 F.3d at 940. The
Ninth Circuit therefore concluded that Rule 11 does not require "the
defendant to request the judge to make the inquiry or specify its
form." Id. As such, the Ninth Circuit sees little reason for the proper
standard of review to turn on whether a defendant made a motion to
withdraw his plea.
After evaluating these competing positions, we see the plain error
approach as most compelling. Significantly, the Advisory Committee
Notes on Rule 11(h) suggest that Rule 11(h) should not be viewed as
establishing a unique standard of review for Rule 11 errors. Indeed,
the Advisory Committee began its discussion by observing that
"[s]ubdivision (h) makes clear that the harmless error rule of Rule
52(a) is applicable to Rule 11." Advisory Comm. Notes to Fed. R.

10

UNITED STATES v. MARTINEZ

Crim. P. 11(h), 1983 Amendment. The Committee further observed

that the considerable disagreement over the effect of the Supreme
Courts McCarthy decision occurred "[n]otwithstanding the declaration in Rule 52(a) that [a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded." Id.
These statements by the Committee, although not directly concerned
with Rule 52(b), indicate that the Committees goal in enacting 11(h)
was in part to demonstrate that error under Rule 11 was no different
from any other error, and that it was governed by the same standard
of review. The Advisory Committee made no suggestion that Rule 11
errors should enjoy some special status, or that such errors are entitled
to be reviewed under a unique standard. In fact, the Committee closed
its commentary on Rule 11(h) with the following statement, rebutting
the idea that Rule 11(h) somehow differentiated Ru1e 11 errors from
other errors in criminal proceedings:
It must also be emphasized that a harmless error provision
has been added to Rule 11 because some courts have read
McCarthy as meaning that the general harmless error provision in Rule 52(a) cannot be utilized with respect to Rule 11
proceedings. Thus, the addition of subdivision (h) should
not be read as suggesting that Rule 52(a) does not apply in
other circumstances because of the absence of a provision
comparable to subdivision (h) attached to other rules.
Id. (emphasis in original). Thus, pursuant to the foregoing analysis,
we are convinced that Rule 11(h) does not require a unique standard
of review for Rule 11 errors.
A structural analysis of the two standards of review also supports
our adoption of the plain error approach. The distinction suggested by
the Ninth Circuit is premised on the concept that there is a difference,
for standard of review purposes, between rules that bind a judges
conduct and rules that convey rights to a defendant. The Supreme
Court, however, made no such distinction in United States v. Olano,
507 U.S. 725 (1993), holding that "[d]eviation from a legal rule is
error [under Rule 52(b)] unless the rule has been waived." Olano,
507 U.S. at 733-34. In fact, in Olano the Court specifically addressed
a rule that imposed obligations on the judge, and it nevertheless held

UNITED STATES v. MARTINEZ

11

that plain error analysis applied if the defendant failed to object at trial.9
Id. at 737. Thus, the Olano Court indicated that if a legal rule is violated and the defendant fails to object at trial, the violation is subject
to plain error review under Rule 52(b), regardless of its type. To the
extent, therefore, the Ninth Circuit contends that Rule 11 errors are
subject to a unique standard of review because Rule 11 places obligations on the judge, the Olano decision renders such a distinction
untenable.
The considerations relied upon by the First and Seventh Circuits
weigh heavily in favor of the plain error approach. As those courts
observed, the interests of judicial economy are far better served by a
plain error standard of review. United States v. Driver, 242 F.3d 767,
770 (7th Cir. 2001); United States v. Gandia-Maysonet, 227 F.3d 1,
5 (1st Cir. 2000). The Government bears the burden under a harmless
error approach of showing that the error was not prejudicial, and in
the context of plea proceedings, showing prejudice usually means
demonstrating that a defendant would not have pleaded guilty absent
the error. Olano, 507 U.S. at 734. Therefore, applying a harmless
error standard to all Rule 11 errors would mean that the Government,
in such cases, must demonstrate that a defendant would still have
pleaded guilty absent the Rule 11 error. As the Seventh Circuit
observed in Driver, the record will likely be sparse with respect to a
defendants knowledge and intentions if the defendant does not move
to withdraw the plea, and the Government therefore would have substantial difficulty sustaining that burden, even when the error is truly
harmless. Driver, 242 F.3d at 769. As such, if we mandate application
of a harmless error standard for all Rule 11 errors, guilty pleas would
be set aside more easily on appeal; thus, employing the harmless error
approach would frustrate one of the central purposes of plea agreements the increased efficiency of the judicial process.10
9

The error at issue in Olano was the district courts failure to comply
with the pre-1999 version of Rule 24(c) of the Federal Rules of Criminal
Procedure, which mandated that "[a]n alternate juror who does not
replace a regular juror shall be discharged after the jury retires to consider its verdict."
10
Perhaps the best argument in favor of the harmless error approach is
that the title to Rule 11(h), "Harmless Error", implies that assertions of

12

UNITED STATES v. MARTINEZ

Consistent with these textual and structural considerations, we are

unable to recognize an exemption under Rule 11 to the Rule 52(b)
analysis for forfeited error. As such, we will review Martinezs Rule
11 claims for plain error.
III.
Having concluded that plain error is the appropriate standard, we
will now apply it to Martinezs contentions, and we must determine
whether any of his claims of Rule 11 error meet the exacting requirements of plain error review. Before doing so, however, we will first
assess the impact of the Apprendi decision, and the impact of our
related decisions in United States v. Promise, 255 F.3d 150 (4th Cir.
2001) (en banc), and United States v. Cotton, 261 F.3d 397 (4th Cir.
2001), on Rule 11 proceedings in this Circuit, particularly in the context of prosecutions under 21 U.S.C. 841. In this regard, we observe
that Martinez was not charged with any substantive drug offense, but
only with conspiracy, under 21 U.S.C. 846, to distribute controlled
substances. Under the conspiracy statute, however, "[a]ny person who
attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy." 21 U.S.C. 846. Because Martinez was indicted under
846 for conspiring to violate 841(a)(1), the provisions of the conspiracys statutory object, 841(a)(1), form the underlying basis of
the conspiracy charge.
Rule 11 error should be treated differently from other contentions of
error in federal criminal proceedings. This point, however, is undercut by
the plain language of Rule 11(h), which provides that error "which does
not affect substantial rights shall be disregarded." Fed. R. Crim. P. 11(h).
A plain error standard of review by definition requires the reviewing
court to disregard errors that do not affect substantial rights; thus,
employing a plain error standard would not contravene the plain language of Rule 11(h). Put another way, the provisions of Rule 11(h) do
not mandate a specific standard of review; instead, they fix a threshold
level of review that must be satisfied.

UNITED STATES v. MARTINEZ

13

A.
In its Apprendi decision in June of 2000, the Supreme Court concluded that Charles Apprendis due process rights had been violated
when, because the state trial court found by a preponderance of evidence that Apprendi had committed criminal activity with a racially
biased purpose, he received a penalty exceeding the statutory maximum for the crime for which he had been convicted.11 Apprendi, 530
U.S. at 497. The Court then held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt." Id. at 490. The Court also concluded that
"facts that expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition elements of a separate
legal offense." Id. at 483 n.10.
In our en banc Promise decision earlier this year, we had occasion
to apply Apprendi to charges under 21 U.S.C. 841. We observed
that 841(a) specifically "prohibits, inter alia, possession of controlled substances with the intent to distribute them," while
841(b)(1) "sets forth various penalties that vary according to, inter
alia, the quantity of the particular controlled substance at issue."
Promise, 255 F.3d at 156 (Wilkins, J., joined by Widener, Williams,
Michael, Motz, Traxler, and King, JJ.) (emphasis omitted). We further noted that "an individual who possesses with the intent to distribute an identifiable but unspecified quantity of [controlled substances]"
faces a maximum sentence of twenty years, and that "[a] sentence
11

Apprendi had pleaded guilty, in New Jersey state court, to two counts
of second degree possession of a firearm for an unlawful purpose, and
to one count of third degree possession of an antipersonnel bomb.
Apprendi, 530 U.S. at 469-70. Under New Jersey law, second degree
offenses have a maximum penalty of ten years imprisonment. Id. at 468.
Prior to Apprendi, however, the court could sentence a defendant to an
extended term ranging from ten to twenty years if, under New Jerseys
hate crimes law, it found by a preponderance of the evidence, that "[t]he
defendant in committing the crime acted with a purpose to intimidate an
individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N.J. Stat. Ann. 2C:443(e). The court, having made such a finding, sentenced Apprendi to
twelve years on one of the two firearms counts, a term which exceeded
the statutory maximum. Apprendi, 530 U.S. at 471.

14

UNITED STATES v. MARTINEZ

exceeding 20 years may be imposed only upon an additional finding

that the offense involved a specific threshold quantity of a schedule
I or II controlled substance." Id. We therefore determined that "in
order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug
quantity, the specific threshold quantity must be treated as an element
of an aggravated drug trafficking offense." Id. Thus, Promise made
clear that 841 constitutes a multi-offense statute, with the baseline
offense being drug distribution without a quantity finding,
841(b)(1)(C), and with multiple aggravated offenses containing the
additional element of a particular threshold quantity of drugs.
With the Promise decision having developed the framework for
analyzing 841 offenses, that framework was elaborated upon in Cotton. Judge Luttig, writing for the panel majority, noted that a court
can neither try nor sentence a defendant for a crime not charged in the
indictment. Cotton, 261 F.3d at 404. He further observed that, under
Apprendi, an "indictment must contain an allegation of every fact
which is legally essential to the punishment to be inflicted." Id. (quoting Apprendi, 530 U.S. at 490 n.15) (emphasis in original). An indictment, therefore, is "mandatory and jurisdictional"; a court may only
take cognizance of charges specified with respect to every essential
element in the indictment. Id. at 404-05. Judge Luttig thus concluded
in Cotton that, in the event an indictment charged a violation of 841
but did not specify quantity, a court possessed jurisdiction to try and
sentence under the baseline drug trafficking offense only, that is,
841(b)(1)(C), and it could not properly try and sentence a defendant
for aggravated charges. Id.
In this case, as in Promise and Cotton, Count One charged Martinez with conspiring, under 21 U.S.C. 846, to violate 841(a)(1).
Although Count One alleged that Martinez was charged with conspiracy to violate 841(b)(1)(A), it contained no allegation of drug quantity. It therefore charged a conspiracy to violate 841(b)(1)(C), and,
under the reasoning of Apprendi, Promise, and Cotton, the district
court possessed jurisdiction over Martinez for that crime only. Thus,
because the court possessed jurisdiction over Martinez for the con-

UNITED STATES v. MARTINEZ

15

spiracy to violate 841(b)(1)(C), it could only conduct plea proceedings and sentence Martinez for that offense.12
B.
We now review Martinezs contentions to determine whether error
occurred as required by United States v. Olano, 507 U.S. 725 (1993).
We therefore must determine (1) whether there was error; (2) whether
it was plain; (3) whether it affected Martinezs substantial rights; and
(4) whether, if the first three criteria are met, we should exercise our
discretion to notice the error. Olano, 507 U.S. at 732.
We first examine whether Martinezs contentions of error are valid.
Martinez alleges four separate errors occurred in his Rule 11 proceedings: (1) that the court incorrectly informed him of his potential sentence; (2) that the court failed to properly inform him of the elements
of the conspiracy charge; (3) that the court failed to inform him that,
if it rejected the Governments sentencing recommendation, he could
not withdraw his guilty pleas; and (4) that the court did not determine
the existence of a factual basis for his guilty pleas. We review each
of these allegations in turn.
1.
Martinezs first contention, that the court incorrectly informed him
12

It is clear, in the aftermath of Apprendi, Promise, and Cotton, that the

parties and the court erroneously believed that Count One charged a conspiracy to violate 841(b)(1)(A), a crime which carries a mandatory
minimum sentence of ten years imprisonment and a maximum possible
sentence of life. The grand jury, however, charged the elements of a conspiracy to violate 841(b)(1)(C), which carries no mandatory minimum
sentence and a maximum possible sentence of twenty years imprisonment, thereby conferring on the district court only the authority to hear
and sentence under that offense. Martinezs sentence of 235 months
imprisonment, however, did not exceed the maximum authorized for
conspiring to violate 841(b)(1)(C), which is 240 months imprisonment. Therefore, any such misapprehensions do not constitute error with
respect to either Martinezs indictment or sentence. United States v.
Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc).

16

UNITED STATES v. MARTINEZ

of the permissible sentence for the conspiracy charge in Count One,

is, in light of the post-plea decision of the Court in Apprendi, a meritorious one. Under Rule 11(c)(1), the district court is obliged to
inform the defendant of any mandatory minimum penalty and the
maximum possible penalty provided by law for the charged offense.
For conspiring under 846 to violate 841(b)(1)(C), we now know,
in light of the trilogy of Apprendi, Promise, and Cotton, that Martinez
faced no mandatory minimum sentence and that he faced a maximum
potential sentence of twenty years imprisonment. Consistent with the
plea agreement, however, the district court incorrectly informed Martinez, prior to Apprendi, that he faced a mandatory minimum sentence
of ten years imprisonment and a maximum possible sentence of life.
In these circumstances, this advice to Martinez on his potential sentence on Count One was incorrect. Therefore, error was committed in
this respect.
2.
Martinezs second contention with respect to his Rule 11 plea proceeding, that he was not properly informed of the elements of the conspiracy charge, is without merit. Before accepting a guilty plea, "a
trial court, through colloquy with the defendant, must inform the
defendant of, and determine that he understands, the nature of the
charge(s) to which the plea is offered." United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991) (citing Fed. R. Crim. P. 11(c)(1)).
Although a judge has wide discretion in deciding how to ensure the
defendants understanding, it is essential that the defendant "receive
notice of the true nature of the charge rather than a rote recitation of
the elements of the offense." Id. at 117 (citing Henderson v. Morgan,
426 U.S. 637, 644 (1976)). In this case, the district court informed
Martinez of each of the elements of the charge in Count One. There
is no indication that Martinez was unaware that he was being charged
with conspiring to distribute and possess controlled substances, or that
he was unclear on what conduct constituted that offense. In fact, Martinezs assertion that he was not informed of the elements of conspiracy is based on the fact that the court failed to inform him that drug
quantity constituted an element of the conspiracy offense. In this
regard, he misses the point: drug quantity is not an element of a substantive 841(b)(1)(C) offense, the object of the Count One conspir-

UNITED STATES v. MARTINEZ

17

acy. Therefore, the court did not contravene Rule 11 in advising

Martinez on the elements of the conspiracy charge.
3.
Martinezs third allegation of Rule 11 error, that he was not properly informed that the courts failure to accept the Governments sentencing recommendation would not constitute grounds to withdraw
from the plea agreement, has merit. Under the provisions of Rule
11(e)(2), if a plea agreement involves a recommendation by the Government under Rule 11(e)(1)(B), the district court "shall advise the
defendant that if the court does not accept the recommendation or
request the defendant nevertheless has no right to withdraw the plea."
Fed. R. Crim. P. 11(e)(2) (emphasis added).13 In this situation,
although the court made clear to Martinez that it was not bound by
the Governments recommendation, it did not specifically inform him
that rejection of that recommendation by the court would not provide
cause for Martinez to withdraw his pleas. Although this omission
appears to be a minor departure from Rule 11(e)(2), we have held, as
have other courts, that even this minimal noncompliance constitutes
error. United States v. Iaquinta, 719 F.2d 83, 85 (4th Cir. 1983); see
also United States v. Livorsi, 180 F.3d 76, 79 (2d Cir. 1999); United
States v. McCarthy, 97 F.3d 1562, 1575 (8th Cir. 1996); United States
v. Diaz-Vargas, 35 F.3d 1221, 1224 (7th Cir. 1994). In Iaquinta,
Judge Ervin laid out the standard:
While the district court need not recite verbatim the advice
required by Rule 11(e)(2), it must substantially inform the
defendant of and determine that the defendant understands
the admonition contained therein. The district court here
merely informed [the defendants] that it was not bound by
any recommendations, and we decline to hold that such an
instruction substantially informs a defendant that he or she
13

A recommendation by the Government comes within the scope of

Rule 11(e)(1)(B) when, pursuant to a plea agreement, the Government
"recommend[s] or agree[s] not to oppose the defendants request for a
particular sentence or sentencing range, or that a particular provision of
the Sentencing Guidelines, or policy statement, or sentencing factor is or
is not applicable to the case."

18

UNITED STATES v. MARTINEZ

has no right to withdraw his or her plea if the district court

does not accept the sentencing recommendation.
719 F.2d at 85. In this case, the court advised Martinez that it was
"not bound by the [plea] agreement and the final disposition of this
case is the sole responsibility of the Court." The court made no mention of Martinezs ability, or lack thereof, to withdraw his plea if the
court rejected the Governments recommendation; in fact, the court
did not specifically address the Governments recommendation at all.
As such, the court failed to "substantially inform" Martinez of the
requirements of Rule 11(e)(2), as required by Iaquinta, and this omission was erroneous.
4.
Martinezs final allegation of Rule 11 error, that the district court
failed to ascertain that a factual basis existed for his guilty pleas, has
no merit. Under Rule 11(f), "[n]otwithstanding 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." Fed. R. Crim. P. 11(f). In essence, Rule 11(f) "ensures that the court make clear exactly what a defendant admits to,
and whether those admissions are factually sufficient to constitute the
alleged crime." DeFusco, 949 F.2d at 120. The court, however, is not
required to make such a determination at the outset of the Rule 11
proceedings; it may defer its inquiry until sentencing. United States
v. Mitchell, 104 F.3d 649, 651 (4th Cir. 1997). The court also need
not establish the guilty pleas factual basis through the plea colloquy;
the court "may conclude that a factual basis exists from anything that
appears on the record." DeFusco, 949 F.2d at 120.
We review the courts finding of a factual basis for a guilty plea
for abuse of discretion. We cannot find error so long as the district
court could reasonably determine that there was a sufficient factual
basis. Mitchell, 104 F.3d at 651. In this case, the inquiry into the factual basis for Martinezs guilty pleas was deferred until sentencing.
The court at sentencing adopted the Presentence Report, which contained a litany of information supporting all the elements of the five
charges to which Martinez pleaded guilty. See United States v. Smith,
160 F.3d 117, 121 (2d Cir. 1998) ("[The court] may look to answers

UNITED STATES v. MARTINEZ

19

provided by counsel for the defense and government, the presentence

report . . . so long as the factual basis is put on the record."); United
States v. Graves, 106 F.3d 342, 345 (10th Cir. 1997) ("[W]e note that
under Rule 11(f), a court may also satisfy the factual basis requirement by examining the presentence report."). As such, the district
court possessed adequate support for concluding that there was a factual basis for Martinezs guilty pleas.
C.
The district court accordingly erred in Martinezs Rule 11 proceedings in two respects, i.e., first, by incorrectly advising Martinez that
he faced a mandatory minimum sentence of ten years and a maximum
possible penalty of life imprisonment on Count One, and second, in
failing to specifically advise Martinez that he would not have cause
to withdraw his guilty pleas if the court rejected the Governments
sentencing recommendation. We must next ascertain whether those
errors were "plain." An error is plain under Olano if, at the time of
appeal, "the settled law of the Supreme Court or this circuit establishes that an error has occurred." United States v. Promise, 255 F.3d
150, 160 (4th Cir. 2001) (en banc) (quoting United States v. Neal, 101
F.3d 993, 998 (4th Cir. 1996). In this situation, in light of the applicable Rule 11 legal principles and the decisions in Apprendi, Promise,
Cotton, and Iaquinta, both these errors were plain.
D.
We next consider the third prong of Olano, and we must decide
whether Martinez has shown that the two errors affected his substantial rights. The Court in Olano observed that an error will affect a
defendants substantial rights if it is prejudicial, i.e., "[i]t must have
affected the outcome of the district court proceedings." Olano, 507
U.S. at 734. As we noted previously, under Rule 52(b) and Olano, the
defendant bears the burden of persuasion with respect to prejudice. Id.
("Rule 52(b) normally requires the same kind of inquiry [as Rule
52(a)], with one important difference: It is the defendant rather than
the Government who bears the burden of persuasion with respect to
prejudice."). Thus Martinez must demonstrate that, absent the Rule 11
errors, he would not have entered into his plea agreement with the
Government. In attempting to demonstrate prejudice, Martinez is not

20

UNITED STATES v. MARTINEZ

required to show that either error, standing alone, was prejudicial,

although such a showing would satisfy his burden. Under the "cumulative error doctrine," Martinez can satisfy the requirements of the
third prong of Olano if the combined effect of the two Rule 11 errors
affected his substantial rights, even if individually neither error is sufficiently prejudicial. See United States v. Munoz, 150 F.3d 401, 418
(5th Cir. 1998); United States v. Fernandez, 145 F.3d 59, 66 (1st Cir.
1998); United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)
("The cumulative effect of two or more individually harmless errors
has the potential to prejudice a defendant to the same extent as a single reversible error.").
Applying these legal principles, Martinez has failed to show that
the two errors in his Rule 11 proceedings, either individually or
cumulatively, affected his substantial rights. First of all, Martinez is
unable to satisfy his burden with respect to the courts Rule 11(c)(1)
error, i.e., its misstatement of the potential penalty on the conspiracy
charge. Martinez contends that his incorrect conception of his potential sentence affected his substantial rights, because "[i]t is axiomatic
that had [he] known that he faced a maximum sentence of 20 years
rather than life imprisonment, he would [have] calculate[d] the risks
and benefits of proceeding to trial differently." Appellants Br. at 31.
This argument, at first glance, may appear compelling, and if Martinez had only been charged and convicted with the single count of
conspiracy under 21 U.S.C. 846, he may have carried his burden of
persuasion. The Indictment, however, alleged eight separate crimes
against Martinez, and three of those crimes (Counts Eight, Eleven,
and Thirteen) were dismissed at his sentencing pursuant to the terms
of his plea agreement. Thus, Martinezs acceptance of the plea agreement was not entirely predicated on some reduction of his sentence
on the conspiracy charge in Count One.
In addition, the eight separate criminal charges against Martinez
meant that he faced a potential sentence far exceeding twenty years.
In fact, each of the seven money laundering counts, under 18 U.S.C.
1956(a)(1), carried a potential separate sentence of twenty years
imprisonment plus a fine of $500,000. Under the Indictment, Martinez therefore faced 140 years imprisonment and $3.5 million in
fines, independent of any penalty under Count One. Thus, even if he
had properly perceived his penalty under Count One, Martinez faced

UNITED STATES v. MARTINEZ

21

the choice of proceeding to trial on eight charges with a potential

maximum penalty of 160 years imprisonment and $7.5 million in
fines, or accepting a plea agreement which reduced his potential
exposure to prison by sixty years, reduced his financial exposure by
$1.5 million, and required the Government to recommend that the
court decrease his prison sentence. Thus, even if Martinez had been
correctly advised of the permissible penalty on the conspiracy charge,
there is no reason to believe that he would have sought to withdraw
from the plea agreement. Martinez therefore fails to demonstrate that
the district courts violation of Rule 11(c)(1) affected his substantial
rights.
Martinez also fails to satisfy his burden under Olano with respect
to the district courts violation of Rule 11(e)(2), i.e., its failure to
advise Martinez that he could not withdraw his pleas if the district
court rejected the Governments recommendation. Although he
claims not to have known that a rejection of the Governments sentencing recommendation by the district court would not give him
cause to withdraw his guilty pleas, Martinez was informed by the
court, prior to entering his guilty pleas, that the court was not bound
by the recommendation of the Government. Therefore, for Martinez
to prevail on this point, he must demonstrate that he would not have
entered into his plea agreement if he had known that the courts rejection of the Governments sentencing recommendation would not give
him cause to withdraw. See McCarthy, 97 F.3d at 1575 (concluding
that prejudice occurs if "appellant can present evidence that he would
not have pleaded guilty had the district court given the warning");
Diaz-Vargas, 35 F.3d at 1224 ("The question of [prejudice] . . .
depends on whether the defendants knowledge and comprehension of
the full and correct information would have been likely to affect his
willingness to plead guilty."). Martinez, however, offers no support
for that proposition, and the record fails to indicate that his guilty
pleas were contingent on his being able to withdraw them if the Governments recommendation was rejected. As such, Martinez also fails
to show that the Rule 11(e)(2) violation affected his substantial rights.14
14

In addition, the district court accepted the Governments sentencing

recommendation and gave Martinez a three-level adjustment for acceptance of responsibility. Thus, Martinez received everything that he could
have expected to receive under the plea agreement.

22

UNITED STATES v. MARTINEZ

Even when reviewed under the cumulative error doctrine, Martinez

is unable to carry his burden of persuasion. The relevant inquiry under
that doctrine is whether, absent both errors, Martinez would still have
entered into the plea agreement. Although the cumulative impact of
the errors exceeds their impact individually, Martinez is nevertheless
unable to demonstrate that his substantial rights were affected. Even
if Martinez had been properly advised by the court with respect to his
potential sentence and his inability to withdraw from the plea agreement if the Governments recommendation were rejected, he still
faced the choice of proceeding to trial on the charges against him
facing a potential sentence of 160 years imprisonment and $7.5 million in fines or accepting a plea agreement which reduced his
exposure to prison by sixty years and his financial exposure by $1.5
million. Martinez offers no support, and none is found in the record,
to suggest that he would have rejected the plea agreement under those
circumstances. Therefore, even under the cumulative error doctrine,
Martinez fails to satisfy his burden of persuasion under Olano.
Because Martinez is unable to satisfy the third prong of Olano, we
need not reach Olanos fourth requirement, i.e., whether this Court
should exercise its discretion to notice plain error.15
IV.
For the foregoing reasons, Martinezs challenges to his convictions
and sentence are without merit, and we affirm.
AFFIRMED
15

In addition to his allegations of Rule 11 error, Martinez asserts that

21 U.S.C. 841 is unconstitutional in light of Apprendi because it
removes facts that increase the prescribed range of penalties from the
province of the jury, and it allows those facts to be established by a preponderance of the evidence. We review de novo a challenge to the constitutionality of a federal statute. United States v. Buculei, 262 F.3d 322,
327 (4th Cir. 2001). We have, however, already analyzed the effect of
Apprendi on 21 U.S.C. 841, and we have found 841 to be constitutional. United States v. McAllister, No. 00-4423, 2001 WL 1387341 at
*2-*3 (4th Cir. Nov. 8, 2001). Given our precedent, we need not further
address Martinezs contention on this point.

UNITED STATES v. MARTINEZ

23

LUTTIG, Circuit Judge, concurring:

In United States v. Promise, 255 F.3d 150, 168-86 (4th Cir. 2001)
(en banc), I separately stated my views as to the proper interpretation
of 21 U.S.C. 841, and I will not repeat those views here. The court
disagreed with those views, and its interpretation of section 841 is
now binding. Because that interpretation is the law of the circuit I
concur in the courts analysis of the errors allegedly committed by the
district court. Additionally, but only because Martinez faced imprisonment for a term of 140 years even absent Count One, I also concur
in the courts conclusion that Martinez has failed to carry his burden
of showing that his substantial rights were affected by the district
courts errors.