William R. Durant v. United States, 410 F.2d 689 (1st Cir. 1969). · Go Syfert
William R. Durant v. United States, 410 F.2d 689 (1st Cir. 1969). Cases Citing This Book View Copy Cite
129 citation events (6 in the last 25 years) across 44 distinct courts.
Strongest positive: McDonald v. Hardy (ca7, 2010-01-05)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 45 distinct citers.
discussed Cited as authority (rule) McDonald v. Hardy
7th Cir. · 2010 · confidence medium
But see Bell v. State, 576 F.2d 564, 566 (4th Cir.1978) (concluding, without deciding whether parole is direct or collateral consequence, that defendant must be informed of ineligibility for parole before pleading guilty); United States v. Smith, 440 F.2d 521, 523-26 (7th Cir.1971) (same); Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969) (same).
discussed Cited as authority (rule) Christopher McDonald v. Hardy, Marcus
7th Cir. · 2010 · confidence medium
But see Bell v. State, 576 F.2d 564, 566 (4th Cir. 1978) (concluding, without deciding whether parole is direct or collateral consequence, that defendant must be informed of ineligibility for parole before pleading guilty); United States v. Smith, 440 F.2d 521 , 523‐26 (7th Cir. 1971) (same); Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969) (same). 1 Courts distinguish between failing to inform and actively misinforming a defendant about collateral consequences.
discussed Cited as authority (rule) McDonald v. Hardy
7th Cir. · 2010 · confidence medium
But see Bell v. State, 576 F.2d 564, 566 (4th Cir.1978) (concluding, without deciding whether parole is direct or collateral consequence, that defendant must be informed of ineligibility for parole before pleading guilty); United States v. Smith, 440 F.2d 521, 523-26 (7th Cir.1971) (same); Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969) (same).
cited Cited as authority (rule) United States v. Gonzalez
1st Cir. · 2000 · confidence medium
See, e.g., Nunez-Cordero, 533 F.2d at 726 ; Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); see also Campbell, 778 F.2d at 767 ; United States v. Russell, 686 F.2d 35, 38 (D.C.
discussed Cited as authority (rule) United States v. Gonzalez
1st Cir. · 2000 · confidence medium
See, e.g., Nunez Cordero, 533 F.2d at 726 ; Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969); see also Campbell, 778 F.2d at 767 ; United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982); Fruchtman, 531 F.2d at 949 ; Michel, 507 F.2d at 465 .
discussed Cited as authority (rule) Skrivanos v. USA
D.N.H. · 1998 · confidence medium
United States, 410 F.2d 689, 692 (1st Cir. 1969) (“matters [such] as loss of passport, deportation, loss of voting 4 privileges and undesirable discharge from the armed services, all of which may result from a plea of guilty,” are “collateral consequences, civil in nature,” in contrast with, for example “parole [which] goes directly to the length of time a defendant is to be incarcerated”).
discussed Cited as authority (rule) Shanks v. State
Miss. · 1996 · confidence medium
Furthermore, the dissent in Ware stated: "Parole is the norm and ineligibility for parole the exception, an exception of which petitioner Ware should have been informed. `The nature of parole is well understood, and its availability may be regarded as assumed by the average defendant.'" Ware, 379 So.2d at 911 (Robertson, P.J., dissenting) (emphasis added) (quoting Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969)).
cited Cited as authority (rule) Ortiz-Casanova v. United States
1st Cir. · 1995 · confidence medium
Ortiz relies on Durant v. United States, 410 F.2d 689, 693 (1st Cir. 1969), which held that a defendant must be informed of parole ineligibility.
cited Cited as authority (rule) Ortiz-Casanova v. United States
1st Cir. · 1995 · confidence medium
Ortiz relies on Durant v. United States, 410 F.2d 689, 693 (1st ______ ______________ Cir. 1969), which held that a defendant must be informed of parole ineligibility.
discussed Cited as authority (rule) v. State of Mississippi
Miss. · 1993 · confidence medium
Furthermore, the dissent in Ware stated: "Parole is the norm and ineligibility for parole the exception, an exception of which petitioner Ware should have been informed. 'The nature of parole is well understood, and its availability may be regarded as assumed by the average defendant.'"Ware, 379 So. 2d at 911 (Robertson, P.J., dissenting) (emphasis added) (quoting Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969)). ¶13.
discussed Cited as authority (rule) Gluckstern v. Sutton (2×)
Md. · 1990 · confidence medium
See United States v. De Simone, 468 F.2d 1196 (CA2 1972); Durant v. United States, 410 F.2d 689, 692 (CA1 1969).
discussed Cited as authority (rule) Andrew James Devine v. New Mexico Department of Corrections
10th Cir. · 1989 · confidence medium
For the confined prisoner, parole — even with its legal constraints— is a long step toward regaining lost freedom. “ ‘It may be “legislative grace” for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offenses, ... this is in the nature of an additional penalty.’ ” Marrero, 417 U.S. at 662-63 , 94 S.Ct. at 2537 -38 (quoting Durant v. United States, 410 F.2d 689, 691 (1st Cir.1969)).
discussed Cited as authority (rule) Walker v. Luther
2d Cir. · 1987 · confidence medium
For, “[i]n any practical analysis, parole consideration is a part of the law annexed to the crime,” Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977), inasmuch as “parole goes directly to the length of time a defendant is to be incarcerated.” Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969).
discussed Cited as authority (rule) ca2 1987
2d Cir. · 1987 · confidence medium
For, "[i]n any practical analysis, parole consideration is a part of the law annexed to the crime," Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977), inasmuch as "parole goes directly to the length of time a defendant is to be incarcerated." Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969).
discussed Cited as authority (rule) Lerner v. Gill
D.R.I. · 1984 · confidence medium
Although a petitioner’s entitlement to parole is a matter which rests in the discretion of the Parole Board, as pointed out in Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (three judge court) “It would not follow because a prisoner might not receive parole that it would not be an unlawful ex post facto burden to deprive him altogether of the right to be found qualified.” The application of the ex post facto provision does not rest upon vested rights analysis which relates specifically to claims under the Contract or Due Process Clauses but operates where there is found to be the …
discussed Cited as authority (rule) United States v. Baylin
D. Del. · 1982 · confidence medium
See e.g., Bye v. United States, 435 F.2d 177, 179 (C.A. 2, 1970); Harris v. United States, 426 F.2d 99, 101 (C.A. 6, 1970); Jenkins v. United States, 420 F.2d 433, 437 (C.A. 10, 1970); Durant v. United States, 410 F.2d 689, 691 (C.A. 1, 1969); Berry v. United States, 412 F.2d 189, 192 (C.A. 3, 1969); Munich v. United States, 337 F.2d 356, 361 (C.A. 9, 1964).
cited Cited as authority (rule) Wayne v. Raines
D. Ariz. · 1981 · confidence medium
Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).
examined Cited as authority (rule) Weaver v. Graham (4×)
SCOTUS · 1981 · confidence medium
See United States v. De Simone, 468 F. 2d 1196 (CA2 1972); Durant v. United States, 410 F. 2d 689, 692 (CA1 1969).
discussed Cited as authority (rule) Adkins v. Bordenkircher
W. Va. · 1980 · confidence medium
An observation made in somewhat different context is apt: “ ‘It may be “legislative grace” for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, ... this is in the nature of an additional penalty.’ Durant v. United States, 410 F.2d 689, 691 (CA 5 1969). “[A] repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the ex post facto clause ... of whether it imposed a ‘greater or more severe punishment than was prescribed by law at the…
cited Cited as authority (rule) Ware v. State
Miss. · 1980 · confidence medium
"The nature of parole is well understood, and its availability may be regarded as assumed by the average defendant." Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969).
discussed Cited as authority (rule) United States v. Ruben Fournier
1st Cir. · 1979 · confidence medium
E. g., United States v. Masthers, supra, 539 F.2d at 722 ; Masciola v. United States, 469 F.2d 1057, 1058 (3d Cir. 1972); Durant v. United States, 410 F.2d 689, 690-691 (1st Cir. 1969). 4 The tests which have been employed for determining the necessity of a hearing in Rule 32(d) and § 2255 cases are similar.
discussed Cited as authority (rule) United States of America Ex Rel. James Robinson v. Thomas Israel, Warden, Joliet Correctional Center and Allyn Sielaff, Director of Corrections (2×) also: Cited "see"
7th Cir. · 1978 · confidence medium
Bachner’s implicit recognition, consistent with the holding of the majority in United States v. Smith, 440 F.2d 521 (7th Cir. 1971), that ignorance of parole eligibility at least can suffice to allow a federal petitioner to vacate a guilty plea on appeal derives considerable support from prior precedent. 4 Paige v. United States, 443-F.2d 781 (4th Cir. 1971); Moody v. United States, 469 F.2d 705 (8th Cir. 1972); Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); but see Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), certiorari denied, 389 U.S. 899 , 88 S.Ct. 224 , 19 L.Ed.…
discussed Cited as authority (rule) James W. Armstrong v. Charles E. Egeler, Warden (2×)
6th Cir. · 1977 · confidence medium
Parole is so common that the average defendant surely expects it to be available to him. 6 Moody v. United States, 469 F.2d 705, 708 (8th Cir. 1972); Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).
cited Cited as authority (rule) Hector Bienvenido Nunez Cordero v. United States
1st Cir. · 1976 · confidence medium
Durant v. United States, 1 Cir., 410 F.2d 689, 692 (1969).
discussed Cited as authority (rule) Warden v. Marrero
SCOTUS · 1974 · confidence medium
For the confined prisoner, parole—even with its legal constraints—is a long step toward regaining lost freedom. [12] An observation made in somewhat different context is apt: "It may be `legislative grace' for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty." Durant v. United States, 410 F. 2d 689, 691 (CA5 1969).
discussed Cited as authority (rule) Warden v. Marrero
SCOTUS · 1974 · confidence medium
For the confined prisoner, parole — even with its legal constraints — is a long step toward regaining lost freedom. 12 An observation made in somewhat .different context is apt: “It may be ‘legislative grace' for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty.” Durant v. United States, 410 F. 2d 689, 691 (CA5 1969).
discussed Cited as authority (rule) United States v. Frank Richardson (2×)
8th Cir. · 1973 · confidence medium
Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969). 6 .
discussed Cited as authority (rule) Jonas Moody v. United States (2×)
8th Cir. · 1972 · confidence medium
Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).
examined Cited as authority (rule) United States v. William C. Smith (3×) also: Cited "see, e.g."
7th Cir. · 1971 · confidence medium
Durant, supra, 410 F.2d at 692, n. 8 . .
cited Cited as authority (rule) United States v. Jacques Rene Henri Vermeulen
2d Cir. · 1970 · confidence medium
Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).
discussed Cited as authority (rule) Robert Bye v. United States
2d Cir. · 1970 · confidence medium
Durant v. United States, 410 F.2d 689, 693 (1 Cir. 1969); Munich v. United States, 337 F.2d 356, 360-361 (9 Cir. 1964); see Lane v. United States, 373 F.2d 570, 573, 576 (5 Cir. 1967); Domenica v. United States, 292 F.2d 483, 486 (1 Cir. 1961); Halliday v. United States, 394 U.S. 831, 832 , 89 S.Ct. 1498 , 23 L.Ed.2d 16 (1969); McCarthy v. United States, 394 U.S. 459 , 468-469 n. 24, 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969); George v. United States, 421 F.2d 128, 129 (2 Cir. 1970) (per curiam).
cited Cited as authority (rule) Robert Woodward, A/K/A Robert Woodard v. United States
3rd Cir. · 1970 · confidence medium
McCarthy v. United States, 394 U.S. 459, 465 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969); 2 Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969); see United States ex rel.
discussed Cited as authority (rule) United States v. Earl Lee Tucker (2×)
4th Cir. · 1970 · confidence medium
Halliday v. United States, supra; Lord v. United States Government, 412 F.2d 499, 504 (4 Cir. 1969); Durant v. United States, 410 F.2d 689, 693 (1 Cir. 1969).
cited Cited as authority (rule) United States v. Darrel Dwayne Youpee
9th Cir. · 1969 · confidence medium
Durant v. United States, 410 F.2d 689, 692-693 (1st Cir. 1969).
discussed Cited "see" Gordon v. Lemons
S.D.N.Y. · 2009 · signal: accord · confidence high
Accord Durant v. United States, 410 F.2d 689, 691 (1st Cir.1969) ("It may be 'legislative grace’ ... to provide for parole but when [a legislature] expressly removes all hope of parole upon *331 conviction and sentence for certain offences, ... this is in the nature of an additional penalty.”). 60 .
discussed Cited "see" Gordon v. Alexander
S.D.N.Y. · 2009 · signal: accord · confidence high
Accord Durant v. United States, 410 F.2d 689, 691 (1st Cir.1969) (“It may be 'legislative grace' ... to provide for parole but when [a legislature] expressly removes all hope of parole upon conviction and sentence for certain offences, ... this is in the nature of an additional penalty.”). 47 .
cited Cited "see" Commonwealth v. DeMarco
Mass. · 1982 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689, 691 (1st Cir. 1969).
discussed Cited "see" Frederick Pennington, Jr. v. Vernon Housewright, Director, Arkansas Department of Correction (2×)
8th Cir. · 1981 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689 (1st Cir. 1969) (former Fed.R.Crim.P. 11 requires court to inform defendant of eligibility for parole); but see Fed.R.Crim.P. 11(c)(2) (Advis.
cited Cited "see" Blondell v. Commonwealth
Ky. · 1977 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689, 691 (1st Cir. 1969).
cited Cited "see" United States v. J. C. Rex
6th Cir. · 1972 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689 (1st Cir. 1969).
discussed Cited "see" State v. Hooper
Ariz. · 1971 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689 (1st Cir.); Jones v. United States, 440 F.2d 466 (2nd Cir.); Berry v. United States, 412 F.2d 189 (3rd Cir.); Pilkington v. United States, 315 F.2d 204, 210 (4th Cir.); James v. United States, 388 F.2d 453 (5th Cir.); *330 Marshall v. United States, 431 F.2d 355 (7th Cir.); Combs v. United States, 391 F.2d 1017 (9th Cir.); Young v. United States, 433 F.2d 626 (10th Cir.).
cited Cited "see" Thomas Harris v. United States
6th Cir. · 1970 · signal: see · confidence high
See Durant v. United States, 410 F.2d 689 (1st Cir. 1969).
cited Cited "see" Ernest Sanchez v. United States
5th Cir. · 1969 · signal: see · confidence high
See Durant v. United States, 1 Cir. 1969, 410 F.2d 689 ; Berry v. United States, 3 Cir. 1969, 412 F.2d 189 .
cited Cited "see, e.g." John Marshall v. United States
7th Cir. · 1970 · signal: see also · confidence low
See also Durant v. United States, 410 F. 2d 689 (1st Cir. 1969).
cited Cited "see, e.g." Aubrey Aeby v. United States
5th Cir. · 1970 · signal: see also · confidence low
See also Durant v. United States, 1 Cir. 1969, 410 F.2d 689, 693 .
William R. DURANT, Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee
7234_1.
Court of Appeals for the First Circuit.
May 9, 1969.
410 F.2d 689
David H. Lamson, Boston, Mass., by appointment of the Court, for appellant., Robert D. Canty, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.
Aldrich, Coffin, McENTEE, Me-ENTEE.
Cited by 101 opinions  |  Published
McENTEE, Circuit Judge.

Defendant was indicted on four counts of narcotics violations — two counts charging violations of 26 U.S.C. § 4705 (a) and two charging violations of 21 U.S.C. § 174. [1] By statute, persons convicted and sentenced for these violations are not eligible for parole. 26 U.S.C. § 7237(d). On February 12, 1968, the defendant appeared for arraignment without counsel and the district court ordered pleas of not guilty entered in his behalf. Also, at defendant’s request, an attorney of his own choice was appointed to represent him. On April 29, 1968, the defendant accompanied by his court appointed attorney, appeared before the district court and requested leave to plead guilty to all four counts. The court made diligent inquiry as to defendant’s understanding of the nature of the charges against him and as to the voluntariness of the plea. Also, defendant was advised as to the minimum and maximum sentences that could be imposed. [2] But no mention was made by the court or anyone else as to the defendant’s ineligibility for parole on any sentence imposed. On the basis of this inquiry the defendant’s pleas of guilty were accepted and thereafter the court sentenced him to concurrent five year terms on each count. Some four months later the defendant, acting pro se, filed the instant § 2255 motion to vacate sentence and alternatively[*691] a motion to withdraw his guilty pleas under Fed.R.Crim.P. 32(d). He complains, among other things, that when he pleaded guilty he did not know that he would be ineligible for parole on any sentence imposed; that in fact he was advised by his attorney that parole would be available to him and that had he known that it was not he would not have pleaded guilty. These motions were denied without a-hearing, [3] as were defendant’s motions for rehearing.

Fed.R.Crim.P. 11, as amended effective July 1, 1966, provides in pertinent part:

“The court may refuse to accept a plea of guilty, and shall not accept such plea * * * 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.” (Italics ours).

The narrow issue presented by this appeal is whether ineligibility for parole is a consequence of defendant’s guilty plea about which the district court must address the defendant personally before accepting the plea. [4] Rule 11 lays down no specific tests or standards by which the consequences of a plea of guilty may be ascertained or determined and there is a difference of opinion among the circuits on the resolution of this issue. Compare Munich v. United States, 337 F.2d 356 (9th Cir. 1964) with Trujillo v. United States, 377 F.2d 266 (5th Cir.), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967) and Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436, cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1963). Relying principally on Trujillo and Smith the government takes the position that parole is merely a matter of legislative grace which may be administratively granted or withheld and therefore not within the ambit of Rule 11. The short answer to this is that it fails to distinguish between availability and eligibility for parole. It may be “legislative grace” for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain of-fences, in our opinion this is in the nature of an additional penalty.

Next, the government advances the argument made in Smith that the defendant pleaded guilty knowing that he could be sentenced to a maximum of eighty years on the four counts of the indictment; that the effect of parole, even if available on this maximum sentence, would have been far in excess of the five year sentence actually imposed. Inexplicably the government fails to develop this argument. If its intention is to show lack of prejudice we reject it. Under Rule 11 the defendant is entitled to know the consequences of his plea before entering it. [5] This mandate is not nor can it be satisfied by hindsight reasoning comparing the actual sentence[*692] with what it could have been. [6] The language of the rule is clearly designed to enable a defendant to assess the risk that he is taking by entering a plea of guilty. [7]

Nor can we accept the argument made in Trujillo that ineligibility for parole is a contingency too remote to be a significant consequence of a plea of guilty. In that case the court attempted to illustrate this point by observing that such matters as loss of passport, deportation, loss of voting privileges and undesirable discharge from the armed services, all of which may result from a plea of guilty, have been determined not to be “consequences of the plea” within the scope of Rule 11. We merely comment that these are collateral consequences, civil in nature, while parole goes directly to the length of time a defendant is to be incarcerated. [8]

In Munich, supra 337 F.2d at 361, the court stated: “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.” We think this is the better view. The nature of parole is well understood, and its availability may be regarded as assumed by the average defendant. Just as the “depressive effect” of a detainer casts a legally cognizable shadow, Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the removal of hope due to the loss of all opportunity to earn “good time” is a substantial deprivation, effecting a fundamental variation in sentence beyond mere calendar years. We do not suggest that a defendant need be given a detail of every consequence of his sentence, but the loss of something important enough to make a deprivation after sentence constitutionally impermissible, cf. Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967), aff’d, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), is a matter of which a defendant should be informed in advance.

Here the defendant would be required to serve five years when he expected that with parole he might be free after serving some twenty months. This increase in imprisonment is far from inconsequential. Where a defendant pleads on the false expectation that he will be eligible for parole, in our. opinion the policy of Rule 11 is not effectuated. Smith v. United States, 400 F.2d 860 (6th Cir. 1968).

The government in its brief seeks to make much of the fact that this defendant was represented by competent counsel when he changed his plea. The presence of counsel, however, does not relieve the court of its responsibility of inquiry under Fed.R.Crim.P. 11. Fultz v.[*693] United States, 365 F.2d 404, 408 (6th Cir. 1966); United States v. Diggs, 304 F.2d 929, 930 (6th Cir. 1962) (eases cited) ; United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957).

We hold that ineligibility for parole is a consequence of a plea of guilty and under Rule 11 the district court should not have accepted the guilty plea without first informing the defendant that conviction upon the plea would make him ineligible for parole.

This brings us to the question of the relief to which this defendant is entitled. Had the sentencing occurred after April 2, 1969, he would have been entitled to plead anew. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (April 2, 1969). That decision, however, is not retrospective. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (May 5, 1969). Accordingly, the procedure followed as to Halliday, Halliday v. United States, 380 F.2d 270 (1st Cir. 1967) viz., a hearing before another judge to determine whether his plea was in fact voluntarily made even though the court had not informed him as to the unavailability of parole, should be adopted. The burden as to voluntariness is, of course, upon the government.

Reversed and remanded to the district court for proceedings consistent with this opinion.

1

. Generally speaking 26 U.S.C. § 4705(a) makes it unlawful for any person to sell narcotic drugs except upon written order issued by the proper federal officer and 21 U.S.C. § 174 deals, among other things, with the unlawful possession of narcotic drugs.

2

. The Court. “What is the maximum penalty?”

Mr. Cullen (Assistant United States Attorney). “Not less than five nor more than 20 years. In addition he may be fined not more than $20,000.”
The Court. “Did you hear Mr. Cullen say what the maximum was?”
The defendant. “Yes, I did.”
Also, in the course of the interrogation the defendant admitted that he had possessed narcotics and had sold them without an order form, as charged. This was corroborated by the narcotics agent’s report.
3

. The district court held that in view of the fact that the defendant had able counsel there was no duty upon the district court to act in any manner differently than it did. It is noted that these motions came before a different district judge than the one who accepted defendant’s plea of guilty and sentenced him.

4

. The importance of a plea of guilty must not be underestimated. As stated in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1961) quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), “A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.”

5

. We do not mean, of course, that a defendant is entitled to know what sentence he will receive before pleading to the charge.

6

. The opposite conclusion is reached in United States v. Caruso, 280 F.Supp. 371 (S.D.N.Y.1967), aff’d sub nom. United States v. Mauro, 399 F.2d 158 (2d Cir. 1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1010, 22 L.Ed.2d 215 (Mar. 11, 1969) (alternative holding) ; Berry v. United States, 286 F.Supp. 816 (E.D.Pa.1968).

7

. This principle has been implemented to the extent of insuring that a defendant is aware of the possible maximum sentence that might be imposed. Combs v. United States, 391 F.2d 1017 (9th Cir. 1968) ; Harper v. United States, 368 F.2d 53, 56 n. 2 (10th Cir. 1966) ; Pilkington v. United States, 315 F.2d 204 (4th Cir. 1964) ; Sims v. United States, 272 F.Supp. 577, 592 (D.Md.1966), aff’d 382 F.2d 294 (4th Cir. 1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1062, 19 L.Ed.2d 1158 (1968).

8

. The government states that in his application to withdraw his plea under Fed.R. Crim.P. 32(d) defendant should at the very least allege that he is not guilty of the charge to which he pleaded and emphasizes the fact that here the defendant readily admitted his guilt. There is authority for the proposition that an allegation of innocence must accompany a claim under Rule 32(d). Zaffarano v. United States, 330 F.2d 114 (9th Cir.), cert. denied, 379 U.S. 825, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964) ; Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960) ; Klingstein v. United States, 217 F.2d 711 (4th Cir. 1954) ; United States v. Norstrand Corp., 168 F.2d 481 (2d Cir. 1948) ; see Kinney v. United States, 391 F.2d 901 (1st Cir. 1968). But here we dispose of the case on the district court’s noncompliance with Fed.R.Crim.P. 11 and do not reach the question of manifest injustice under Rule 32(d).