Pell and Stevens, Circuit Judges, and Eschbach, District Judge.*fn*
In a collateral attack on his conviction, petitioner alleges that the trial judge accepted his guilty plea without following the procedures mandated by Rule 11.*fn1 The questions presented are whether the Rule was violated and, if so, whether the violation will support a collateral attack pursuant to 28 U.S.C. § 2255.
The facts are somewhat unusual. On July 1, 1970, petitioner was indicted for conspiracy to sell narcotics in violation of 21 U.S.C. § 174 (1964). That statute was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, effective as of May 1, 1971. 84 Stat. 1236. Eighteen days later, on May 19, 1971, petitioner was arraigned.*fn2 Acting on the advice of retained counsel, he entered a guilty plea.
The transcript of the arraignment is somewhat disjointed because petitioner does not speak English and the services of an interpreter were required. The transcript establishes that petitioner did not participate in an actual sale of drugs. He admitted that he negotiated for the sale of heroin and cocaine and had accepted $20,000 intended as a payment for a kilo of heroin; however, he delivered a bag of sugar, not heroin, to the purchaser. When asked if he had intended to sell heroin, he was at first silent and later gave an ambiguous answer.*fn3 He admitted telling the purchaser, a government agent, that he was selling heroin, but denied telling him that "he would make up the fact that it was sugar and not heroin."
During the arraignment there was no reference to petitioner's eligibility, or ineligibility, for parole.
Petitioner alleges two violations of Rule 11. The failure to advise him of parole ineligibility as required by United States v. Smith, 440 F.2d 521 (7th Cir. 1971); and the failure to establish that there was a factual basis for the plea. We decide the two points separately.
The district court held that the failure to advise petitioner that he was not eligible for parole was harmless error because our decision in United States v. McGarr, 461 F.2d 1 (7th Cir. 1972), has subsequently made him eligible. Petitioner argues that the voluntariness of his plea must be tested by his understanding at the time it was entered, and if he was then misinformed about the consequences of his election, the plea was involuntary. Before deciding whether the alleged error was harmless, we must first determine whether or not any error was committed.
In their briefs, the parties interpret our decision in McGarr as effecting a change in the law and thereby making persons convicted of violating 21 U.S.C. § 174 eligible for parole. But McGarr did not change the law. If McGarr is correctly decided,*fn4 the law was changed by Congress when it repealed § 7237(d) effective as of May 1, 1971. On that premise, petitioner was not ineligible for parole in consequence of his conviction on May 19, 1971. Accordingly, if petitioner then assumed that the normal parole conditions would apply to him, his assumption was correct. On the other hand, if he assumed that he would be ineligible, there was no need to give him this advice; for on that assumption the rationale of Smith is inapplicable.
For this branch of petitioner's attack to prevail, we would have to conclude that the Supreme Court will ultimately rule (a) that McGarr is incorrectly decided, and (b) that the majority in Smith correctly held that this omission is a violation of Rule 11 which entitles petitioner to relief pursuant to § 2255. Under our present understanding of the law, this part of petitioner's claim must fail.
The second issue is actually composed of two parts. Petitioner argues that the transcript does not adequately demonstrate that he understood the nature of the charge against him or that there was a factual basis for the plea. The character of petitioner's understanding would affect the voluntariness of his plea and therefore might have constitutional significance. The requirement in Rule 11 that the court be satisfied that there is a factual basis for the plea relates to the guilt or innocence of the defendant and not necessarily to the issue of voluntariness.
On the question of petitioner's understanding of the charge, the transcript does reflect a clear and complete explanation to him in open court. That explanation, coupled with the presence of competent retained counsel,*fn5 is sufficient to establish that he did understand the essence of the indictment. Indeed, his § 2255 petition does not allege a lack of ...