On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Seitz, Gibbons and Sloviter, Circuit Judges.
Oscar de le Puente appeals from a sentence imposed following a guilty plea. He contends that he should be permitted to withdraw his guilty plea and plead anew, because the trial court, when it accepted the guilty plea, did not comply fully with Fed. R. Crim. P. II(e). We affirm.
Mr. de le Puente was charged in an indictment with two counts of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) 1982), and one count of conspiracy to distribute in violation of 21 U.S.C. § 846(1982). Pursuant to plea negotiations he agreed to plead guilty to two counts of of the indictment, while the government agreed that it would recommend to the court a sentence of incarceration not to exceed five years.
On May 14, 1984, de le Puente appeared before the trial court, which accepted his guilty plea to two counts. Before accepting that plea the court advised him, through an interpreter, as follows:
THE COURT: What I am telling you, Mr. de le Puente, is that the maximum sentence could be imposed. The minimum sentence that could be imposed would be a term of probation. So the sentence has to be, under the law, somewhere between the probationary term and the maximum term I mentioned.
Now, the United States Attorney has agreed to recommend to the Court that the sentence that should be imposed within this range, if it's a jail term, it should not exceed a total of five years.
What you have to understand now is that the Court, while it will listen to that recommendation and consider the Government's recommendation very important, the Court is not bound by that recommendation. That is, the Court could impose a sentence that would be less than that or more than that, within the range that I have outlined.
THE COURT: So if you plead guilty, it will be on the basis that the Court will receive the recommendation of the Government and will hear from your attorney and will hear from you, and the Court will then impose a sentence in the range between probation and up to a ...