HAMLEY, Circuit Judge.
Anthony J. Munich, proceeding under 28 U.S.C. § 2255 (1958), moved in the district court to vacate a sentence imposed upon him following his conviction of a federal offense. The motion was denied, after hearing, and Munich appeals. We have heretofore denied the motion of the United States to dismiss the appeal as untimely. Munich v. United States, 9 Cir., 330 F.2d 774.
On December 28, 1960, Munich, being represented by retained counsel, pleaded not guilty to all counts of an eight-count indictment charging violations of section 2(c) of the Narcotic Drugs Import and Export Act, as amended, 70 Stat. 570, 21 U.S.C. § 174 (1958). Counts 1, 3, 5 and 7 charged unlawful concealment or facilitating the concealment of specified amounts of heroin on November 16, 21, 22 and 23, 1960, respectively. Counts 2, 4, 6 and 8 charged, respectively, sale or facilitating the sale of the same heroin on the same dates.
On January 26, 1961, five days before the case was scheduled for trial by jury, Munich, represented by retained counsel, withdrew his plea of not guilty to count 1 and entered a plea of guilty to that count.
On February 16, 1961, Munich being in court with his retained counsel, the United States Attorney filed an information
Munich acknowledged his prior conviction. Such acknowledgment called for application of the provision of 21 U.S.C. § 174 requiring the imposition of a sentence of not less than ten or more than forty years, the court also having authority to impose a fine of not more than twenty thousand dollars. The court thereupon imposed upon Munich a sentence of twenty years, and dismissed counts 2 through 8 of the indictment. No appeal was taken.
This proceeding under section 2255 was commenced about a year and a half later. Several grounds for relief were urged, all of which are renewed here after their rejection by the trial court following a hearing.
One ground for relief asserted by Munich is that, in accepting his plea of guilty to count 1 of the indictment, the trial court did not perform the function required of it under Rule 11, Federal Rules of Criminal Procedure. Rule 11 provides that the court shall not accept a plea of guilty "* * * without first determining that the plea is made voluntarily with understanding of the nature of the charge."
As indicated by the wording of the rule, the two questions of fact which the court must determine are whether the plea of guilty is made voluntarily, and whether it is made with understanding of the nature of the charge. In order to determine whether a plea of guilty is made with understanding of the nature of the charge, it is necessary for the court to take steps to satisfy itself that the defendant understood: (1) the meaning of the charge, (2) what acts are necessary to establish guilt, and (3) the consequences of pleading guilty to the charge. Kadwell v. United States, supra.
In determining these questions the court is not required to follow any particular ritual,
It must nevertheless appear that there was a substantial basis in fact for such a determination. This basis is usually provided by colloquy or explanations made at the time the plea of guilty is tendered.
In the case before us the record of the proceedings when the plea of guilty was accepted reveal no substantial basis for the required determination. The court made no explanation to, or inquiry of, Munich on that occasion. While Munich's retained counsel was present, he was not asked whether he had advised Munich as to the nature of the charge, and he did not volunteer any information as to this. All that occurred was this brief colloquy between the clerk of the court and Munich:
It will be observed that there was no inquiry whatever as to whether the plea was voluntary. A defendant may understand the nature of the charge to which he is pleading guilty, without such plea being voluntary. Nor, at least in the absence of any assurance from counsel, does a defendant's affirmative answer to the single inquiry as to whether he "understands" the charge provide a substantial basis for a determination that the defendant understands the meaning of the charge, what acts are necessary to establish guilt, and the consequences of pleading guilty.
We therefore hold that there was noncompliance with Rule 11 in accepting Munich's plea of guilty.
Nonetheless, if the plea was in fact made voluntarily and with understanding of the nature of the charge, the error was harmless.
Concerning the first of these reasons, one of the consequences of being convicted of a violation of 21 U.S.C. § 174, is that the imposition or execution of the sentence imposed shall not be suspended, probation shall not be granted, and parole is not available. 26 U.S.C. § 7237(d), Rivera v. United States, 9 Cir., 318 F.2d 606, 609-610; Witt v. United States, 9 Cir., 287 F.2d 389, 392. In our opinion one who, at the time of entering a plea of guilty, is not aware of the fact that he will not be eligible for probation or parole, does not plead with understanding of the consequences of such a plea.
At this section 2255 hearing Munich testified that no one ever told him that he would not be eligible for probation. This testimony is corroborated by that of Munich's then counsel, who testified that at no time did he advise Munich that there was no possibility of probation or parole. As we have seen, Munich was not so advised in court at the time the plea of guilty was received, or before, nor did counsel for Munich so represent to the court.
We must therefore conclude that the Government has not sustained its burden of proving that Munich pleaded guilty with understanding of the consequences. It follows that the error in failing to comply with Rule 11 cannot be disregarded as harmless.
In view of this conclusion it is not necessary to examine Munich's other contentions concerning the voluntary nature of the plea, nor the several independent grounds for relief urged in his section 2255 motion and renewed here.
Reversed and remanded with directions to vacate the judgment of conviction, the sentence, and the plea of guilty upon which the conviction is based, and to afford Munich a new opportunity to plead to count 1 of the indictment. The district court order dismissing, upon the motion of the Government and the tacit consent of Munich, the remaining counts of the indictment, entered after Munich pleaded guilty to count 1, may, upon the motion of the Government and in the discretion of the district court, be set aside, so as to restore the criminal proceeding to the same status it had before the plea of guilty was received.