United States v. King

¶6PER CURIAM:

¶7This appeal is from the denial of a motion under 28 U.S.C. § 2255 to vacate and set aside a sentence imposed upon Edward King by the United States District Court for the Northern District of Alabama.

¶8In May, 1974, King was convicted on his guilty pleas of importing heroin on three occasions, in violation of 21 U.S.C. § 952(a). He received a ten year sentence for these offenses. Shortly thereafter, King was convicted by a jury of conspiracy to import *412heroin under 21 U.S.C. § 846, upon which conviction a 15 year consecutive sentence was imposed. This Court affirmed his conspiracy conviction on direct appeal. United States v. King, 517 F.2d 350 (5th Cir. 1975).

¶9In 1977, King filed with the sentencing court a 28 U.S.C. § 2255 motion seeking to vacate the judgment of conviction and sentence imposed thereon in the conspiracy case. He claimed invalidity on the ground that he was twice put in jeopardy and the fifteen year consecutive sentence constituted cruel, unusual and excessive punishment. The district court denied relief and this Court affirmed. King v. United States, 565 F.2d 356 (5th Cir. 1978).

¶10In February, 1979, King filed another § 2255 motion, this time seeking to vacate the judgment of conviction and sentence in the § 952(a) case (importation of heroin) in which he pleaded guilty. In the district court King contended that there was noncompliance with Rule 11, Federal Rules of Criminal Procedure, and further contended that his pleas were not voluntary since they were based on a plea agreement that was not honored. The district court denied relief. We affirm.

¶11King contends that the district court erred in determining that there was a factual basis for the pleas without addressing him, and further erred in that the court did not personally address him regarding his withdrawing his previously entered not guilty pleas.

¶12Rule 11 as it existed prior to 1975 was as follows:

¶13A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

¶14A review of the record reflects that the district court did personally address King or his attorney in King’s presence in open court, not only respecting the voluntariness of the tendered pleas but also as to the factual basis therefor.1

¶15*414To the extent that the district court did not address the defendant personally on the question of a factual basis for the pleas there was no violation of Rule 11. As long as the factual basis is developed on the record, it may come from several sources. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Sassoon v. United States, 561 F.2d 1154, 1158 (5th Cir. 1977).

¶16To the extent that here neither the judge nor the prosecutor made the inquiry of the defendant personally, we hold that the plea proceedings in this instance do not reveal a “complete miscarriage of justice” and that the proceedings were not “inconsistent with the rudimentary demands of fair procedure.” Lambert v. United States, 5 Cir., 600 F.2d 476, No. 78-2540, August 6, 1979.

¶17Finally, King contends that there was an unkept plea agreement to the effect that he would not be prosecuted on similar charges. The transcript, as set out in Footnote 1, absolutely refutes this contention. It is clear that the full agreement was a recommended ten year sentence. This King received.

¶18AFFIRMED.