UNITED STATES of America, Plaintiff-Appellee, v. Ronald Bruce ADAMS, Defendant-Appellant, 432 F.3d 1092

ALARCÓN, Circuit Judge. Ronald Adams appeals from the district court’s order sentencing him to five years in prison and fining him $400,000. He contends that his guilty plea was not knowing, voluntary and intelligent, that the district court improperly failed to give him a sentence reduction under the Safety Valve, and that his sentence violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We vacate Mr.

Adams’s guilty plea and conviction because we conclude that it was not knowing, voluntary and intelligent in light of the district court’s failure to inform him that he was subject to a mandatory fine under the Sentencing Guidelines. Accordingly, we do not consider the additional issues raised by Mr. Adams. I On September 2, 2003, Montana state officials found 200 marijuana plants on Mr. Adams’s property. Mr. Adams entered into a plea agreement with the Government, in which he admitted planting the garden.

In the plea agreement, the Government agreed to recommend to the district court that no fine be imposed as part of his sentence. The Presentence Report (“PSR”) found that, pursuant to the United States Sentencing Guidelines Manual (U.S.S.G.) § 5E 1.2(c)(3) and (4), the applicable fines ranged from $4,000 to $2,000,000 for each of the two charged offenses, and that Mr. Adams had $7,408,034 in assets. The district court imposed a fine of $200,000 for each of the two offenses, for a total of $400,000. II Mr.

Adams asserts that his sole motivation for pleading guilty was the agreement he had with the Government that it would ask the district court not to impose a fine. He alleges that, had the judge informed him that he was subject to a mandatory minimum fine, he would not have pled guilty. Because Mr. Adams did not object below to the failure of the district court to comply with Rule ll(b)(l)(

I) and Rule ll(b)(l)(

M) of the Federal Rules of Criminal Procedure, we review for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). “Plain error is: (1) error; (2) that was plain; and (3) affected substantial rights.” United States v. Benitez-Perez, 367 F.3d 1200, 1205 (9th Cir.2004) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If the error satisfies these criteria, we are still not required to reverse unless the error ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Alli, 344 F.3d 1002, 1007 (9th Cir.2003)). Rule ll(b)(l)(

I) provides that during the plea colloquy, “the court must inform the defendant of, and determine that the defendant understands ... any mandatory minimum penalty.”

Section 5E1.2(

a) of the Sentencing Guidelines provides that “[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” Mr. Adams contends that under Rule ll(b)(l)(I), the district court was required to inform him that a fine was mandatory, but failed to do so. Prior to accepting his guilty plea, the district court advised Mr. Adams as follows: Now as to the penalties.

I believe your plea agreement acknowledges your understanding of the minimum penalty here being a term of imprisonment for five years on each of the two counts and the maximum penalty of 40 years as to each particular crime, as well as a fine of not to exceed $2 million or both imprisonment and fine and additionally a term of supervised released or at least not more than five years supervised release as to each count. The district court did not inform Mr.

Adams that, in addition to a minimum term of imprisonment for five years, the district court was required to impose a mandatory fine pursuant to U.S.S.G. § 5E1.2(a). The Government contends that the district court did not err in failing to inform Mr. Adams that he faced a mandatory minimum fine because the imposition of a fine is not mandatory under the Sentencing Guidelines.

In support of this argument, the Government points to the exception in U.S.S.G. § 5E1.2(a): “The court shall impose a fine in ali cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” (Emphasis added.) The Government asserts that this exception makes the imposition of the finé discretionary. Therefore, it argues, the district court was not required to inform Mr. Adams that he would be subject to a fine. The Government has not cited any authority to support its

interpretation of § 5E1.2(a). We are persuaded that the plain meaning of § 5E 1.2(

a) is that, if a defendant has the means to pay the fine, the imposition of a fine is mandatory. See, e.g., Lopez v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001) (“Congress’ use of the permissive ‘may’ ... contrasts with the legislators’ use of a mandatory ‘shall’ in the very same section. Elsewhere in [the section], Congress used ‘shall’ to impose discretionless obligations .... ”); Lexecon, Inc. v.

Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (“The Panel’s instruction comes in terms of the mandatory ‘shall,’ which normally creates an obligation impervious to judicial discretion.”). The Government contends further that there was no error in this ease because Mr. Adams was put on notice of the maximum fine he could face. This argument misses the point. Mr. Adams argues that the district court violated Rule ll(b)(l)(

I) by failing to advise him that, as a direct consequence of a guilty plea, he would be subject to a mandatory minimum fine. We agree. Mr. Adams entered a guilty plea after the Government promised to ask the district court not to impose any fine. We infer from the plea agreement that both parties believed the district court had the discretion not to impose a fine. We previously held in United States v.

Maree, 934 F.2d 196 (9th Cir.1991) that Rule 11(c)(1) requires the sentencing court to “inform the defendant of ... the mandatory minimum penalty provided by law.” The Rule does not, however, require the court to discuss the minimum guideline sentence. In a practical sense, it would be impossible for a court to inform a defendant of the minimum sentence available under the Guidelines. The presentence report, which is not prepared prior to the entrance of a guilty plea, is essential to the court’s formulation of the relevant sentence factors. Id. at 200 (alteration in original).

Here, the Sentencing Guidelines provided that Mr. Adams would be subject to a mandatory fine regardless of the offense level that would be calculated in the PSR. See n. 1 supra (quoting “Fine Table” from U.S.S.G. § 5E1.2(c)(3)). Thus, even if the district court did not know at the time of the plea colloquy the precise amount of the fine that would be applicable, it was required to inform Mr. Adams that a mandatory fine would be imposed. In any event, the change of plea hearing in Maree occurred in 1988, prior to the amendment of Rule 11 on December 1, 1989. Rule ll(b)(l)(

M) provides that a district court must inform the defendant of “the court’s obligation to apply the Sentencing Guidelines.” We held in Maree that because “[t]he 1988 version of Rule 11[] did not require the district court to discuss the guidelines ... the district court did not err” in failing to advise him of the applicability of the Sentencing Guidelines. 934 F.2d at 200. We noted in Maree that “[t]he current form of Rll[] does indeed require that the district court inform a defendant entering a plea of the sentencing guidelines’ applicability.” Id.

Thus, the holding in Maree is not controlling, nor is it the law of this circuit regarding guilty pleas entered after the amendment to Rule 11 requiring a court to explain its obligation to apply the Sentencing Guidelines. More recently, in United States v. Littlejohn, 224 F.3d 960 (9th Cir.2000), we held that “district courts in this circuit still must inform defendants pleading guilty of the direct consequences of their plea and resulting conviction, in addition to the warnings required by the explicit language of Rule 11[ ].” Id. at 965 (emphasis added).

We have described a direct consequence of a guilty plea as a result that “represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.1988) (quotation and citation omitted). We con-eluded in Littlejohn that the district court erred when it failed to advise the defendant that pleading guilty would render him ineligible for social security assistance and food stamp benefits, notwithstanding the fact that that consequence was not set forth in Rule 11. Littlejohn, 224 F.3d at 969.

We do not hold that, prior to accepting a guilty plea, a judge must inform a defendant of the precise minimum fine that will be imposed. Instead, we conclude that Rule 11 requires a district court to advise a defendant that he shall face a mandatory fine if he or she has the ability to pay it. Obviously, the amount of the fine and the defendant’s ability to pay it will depend upon the facts set forth in the presentenee report. A direct consequence of Mr. Adams’s guilty plea was the imposition of a mandatory fine under § 5E1.2(a), unless he established at the sentencing hearing that he was unable to pay it.

Thus, under Little-john, as well as Rule 11, the district court erred in failing to advise Mr. Adams that he faced the imposition of a mandatory fine unless he persuaded the court that he was unable to pay it. The Supreme Court has instructed that a guilty plea is voluntary only if the defendant is fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). It has also held that the plea colloquy is designed “to protect the defendant from an unintelligent or involuntary plea.” Mitchell v.

United States, 526 U.S. 314, 322, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999). Mr. Adams has demonstrated that he was not fully aware of the direct consequences of his plea because he was not informed by the district court that he would be subject to a mandatory fine. Mr. Adams bargained for, and obtained, a promise from the Government to recommend that no fine be imposed, and he insists he would not have pleaded guilty had he known that the court could not adopt such a recommendation.

The plea agreement led him to believe that the district court had the discretion to adopt the Government’s recommendation that a fine not be imposed. We therefore hold the court’s error was plain and affected Mr. Adams’s substantial right to enter a knowing, voluntary and intelligent plea. To accept a guilty plea under such circumstances affects the fairness, integrity, and public reputation of judicial proceedings because “we cannot know whether [the defendant] would have pleaded differently if he had been properly informed.” United States v. Smith, 60 F.3d 595, 600 (9th Cir.1995).

We VACATE the plea and conviction, and REMAND for further proceedings. . U.S.S.G. § 5E1.2(

c) reads as follows:

(1) The minimum of the fine guideline range is the amount shown in column A of the table below.

(2) Except as specified in (4) below, the maximum of the fine guideline range is the amount shown in column B of the table below.

(3) Fine Table: Offense A B Level Minimum Maximum 3 and below $ 100 $ 5,000 4-5 $ 250 $ 5,000 6-7 $ 500 $ 5,000 8-9 $ 1,000 $ 10,000 10-11 $ 2,000 $ 20,000 12-13 $ 3,000 $ 30,000 14-15 $ 4,000 $ 40,000 16-17 $ 5,000 $ 50,000 18-19 $ 6,000 $ 60,000 20-22 $ 7,500 $ 75,000 23-25 $10,000 $100,000 26-28 $12,500 $125,000 29-31 $15,000 $150,000 32-34 $17,500 $175,000 35-37 $20,000 $200,000 38 and above $25,000 $250,000. (4)Subsection (c)(2), limiting the maximum fine, does not apply if the defendant is convicted under a statute authorizing (

A) a maximum fine greater than $250,000, or (

B) a fine for each day of violation. In such cases, the court may impose a fine up to the maximum authorized by the statute. . The string of cases cited in footnote 21 of the dissent does not support the notion that the holding in this case is contrary to the law of this circuit and the view of nine other circuits. It is quite true that at the time of the publication of this court's decision in Maree, the Eighth Circuit’s decision in United States v. Thomas, 894 F.2d 996 (8th Cir. 1990) (per curiam), and the Tenth Circuit's decision in United States v.

Rhodes, 913 F.2d 839 (10th Cir. 1990), a district court was not required to discuss with the defendant the applicability of the Sentencing Guidelines prior to accepting a guilty plea. In each of these cases, the plea colloquy took place prior to December 1, 1989, before Rule 11 was amended to provide that a district court must inform a defendant of its "obligation to apply the Sentencing Guidelines.” Thus, Maree is no longer the law of the circuit except as to guilty pleas entered prior to December 1, 1989.

Furthermore, the out-of-circuit cases cited in the dissent have no precedential or persuasive value in determining a district court’s duty under Rule ll(b)(l)(M). None of the cases cited in the dissent discusses the question whether the failure of a district court to fulfill its obligation under Rule ll(b)(l)(

M) to inform the defendant that the Sentencing Guidelines provide for a mandatory fine under certain circumstances renders a guilty plea involuntary. . The dissent correctly notes that Mr. Adams's wealth makes him an "exception rather than the rule," and that, for most criminal defendants, "the judge would find that the defendant could not pay the fine.” Dissent at 1098. It is precisely Mr. Adams’s wealth (and hence his ability to pay), together with the terms of his plea agreement, that make this the rare case in which the district court's failure to inform him of the mandatory fine cannot be deemed harmless. See Fed. R.Crim.P. 11(h).