United States v. Ferguson

Opinion

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 94-1403


UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  MARK A. FERGUSON,



                                Defendant, Appellant.


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                   ON APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS



                        [Hon. Rya Zobel, U.S. District Judge]
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                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                                Lynch, Circuit Judge,
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                        and Schwarzer,* Senior District Judge.
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               Roderick B. O'Connor, for defendant, appellant Mark A.
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          Ferguson.

               Thomas G. Frongillo, Assistant United States Attorney, for
               ___________________

          the United States. 



                                 ____________________



                                    July 20, 1995

                                 ____________________


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               *Of  the   Northern  District  of   California,  sitting  by

          designation.



LYNCH, Circuit Judge.  On  June 24, 1993, a federal
                      LYNCH, Circuit Judge.  
                             _____________



            grand jury returned a 38-count indictment  charging appellant



            Mark A.  Ferguson and  twelve others  with violations  of the



            drug   laws.    The  indictment  charged  Ferguson  with  (1)



            conspiracy  to  distribute  cocaine   and  cocaine  base   in



            violation of  21 U.S.C.    846 (Count  2), (2)  possession of



            cocaine with intent to distribute in violation of 21 U.S.C.  



            841(a)(1)  (Count 4);  (3) distribution  of  cocaine base  in



            violation of 21 U.S.C.   841(a)(1) (Counts 7, 8, 14, 17); (4)



            distribution of cocaine in violation of 21 U.S.C.   841(a)(1)



            (Count 11); (5) attempted distribution of heroin in violation



            of 21  U.S.C.    846 (Count 12);  and (6)  unlawful use  of a



            communication facility  in violation  of 21  U.S.C.    843(b)



            (Counts  34, 35,  and 37).   Ferguson  was also  charged with



            aiding and  abetting in violation of 18 U.S.C.    2 on all of



            the  substantive drug counts (Counts 4,  7, 8, 11, 12, 14 and



            17).



                      On December 3, 1993, Ferguson pled guilty to Counts



            2, 7, 8,  11, 12, 14, 17,  34, 35, and  37 of the  indictment



            pursuant to a written plea agreement with the United  States.



            Count 4 was dismissed.  On April  7, 1994, the district court



            sentenced  Ferguson to 120 months imprisonment and five years



            supervised  release on Counts 2, 8, 14,  and 17, to be served



            concurrently;  120 months imprisonment  on Counts 7,  11, and


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12, to be  served concurrently with one another  and with the



            sentences  for  Counts  2,  8,  14, and  17;  and  48  months



            imprisonment  on  Counts  34,  35,  and  37,  to  be   served



            concurrently  with one  another and  with  the sentences  for



            Counts 2,  8, 14, and  17.   The district court  also ordered



            Ferguson  to  pay a  $500  special assessment,  $50  for each



            count.    On April  12, 1994,  Ferguson appealed,  seeking to



            withdraw his guilty plea.



                      Because  Ferguson  seeks   to  withdraw  his   plea



            following the imposition  of his sentence, he must  show that



            the  plea proceedings were  marred by "'a  fundamental defect



            which   inherently  results  in  a  complete  miscarriage  of



            justice' or  'an omission  inconsistent with the  rudimentary



            demands of  fair procedure.'"   Fed. R.  Crim. P.  32(d) [now



            Rule  32(e)] advisory  committee's  note  to 1983  amendments



            (quoting  Hill v. United  States, 368  U.S. 424  (1962)); see
                      ______________________                          ___



            also United States v. Japa, 994 F.2d 899, 902 (1st Cir. 1993)
            ____ _____________________



            (stating that the  benchmark for setting  aside a plea  post-



            sentencing  is  "a  fundamental defect  or  a  miscarriage of



            justice").  Ferguson's appeal does not meet this standard.



                      Ferguson argues that  his plea should be  set aside



            because the district  court failed to take  adequate steps at



            his plea  hearing  to  determine  that his  guilty  plea  was



            knowingly  and  voluntarily  made.    Specifically,  Ferguson



            contends that  the district  court violated  Federal Rule  of


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Criminal Procedure 11(c)(1) by failing to explain the charges



            to him and to determine that he understood the charges.  Rule



            11(c)(1)  requires,  among  other  things,  that   the  court



            accepting  the plea "address the defendant personally in open



            court and  inform the defendant  of, and  determine that  the



            defendant understands . . .  (1) the nature of the charges to



            which the plea  is offered . .  . ."   The record shows  that



            Ferguson's  plea neither  was a  miscarriage  of justice  nor



            resulted from  procedures inconsistent  with the  rudimentary



            demands of fair procedure.1



                      The record  of the plea  hearing demonstrates  that



            the district court took a number of steps to ensure that  the



            concerns underlying Rule 11(c) (particularly those underlying



            11(c)(1))  were addressed.  The district court asked Ferguson



            his  age  (25)  and   educational  background  (11th  grade).



            Ferguson informed the court that he had  read the indictment,



            had discussed it with his attorney, and that his attorney had



                                
            ____________________



            1.  Ferguson's  argument on appeal is limited to the question

            of  whether the district  court complied with  Rule 11(c)(1).

            He does  not argue that  the district court failed  to comply

            with the  requirements of  Rule 11(d) when  it failed  to ask

            Ferguson at the plea hearing whether his willingness to plead

            guilty  resulted from discussions  with the attorney  for the

            government.  See Fed. R. Crim. P. 11(d)("The court shall also
                         ___

            inquire  as to whether  the defendant's willingness  to plead

            guilty  or nolo  contendere  results from  prior  discussions

            between the attorney for the government  and the defendant or

            the  defendant's attorney.").   Any  argument  based on  Rule

            11(d), therefore, has  been waived.  See, e.g.,  Pignons S.A.
                                                 ___  ____   ____________

            de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)
            ______________________________

            (arguments  not  presented  in initial  brief  on  appeal are

            waived). 



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explained  to him  what it  meant.   The district  court also



            asked Ferguson whether he understood that he had been charged



            with crimes similar  to the ones that the  district court had



            described   earlier  in  the  hearing  to  Yancy  Calhoun,  a



            codefendant charged under the same counts who pled  guilty at



            the same  hearing.   Ferguson, who had  been present  for the



            description  of the charges  against Calhoun, stated  that he



            did.2



                      Further, during the course of the plea hearing, the



            district  court informed  Ferguson  of  the  charges  in  the



            indictment; it  informed him  of the  potential penalties  he



            faced; it informed  him of the rights he  would be waiving by



            pleading guilty;  it ensured that  the factual basis  of each



            offense was presented  in open court in  Ferguson's presence;



            it repeatedly  asked  him  if he  understood;  and  it  asked



            questions  of Ferguson about each of the substantive offenses



            to   determine  whether  he   understood  what   conduct  the



            government  alleged   formed  the  basis   of  his   criminal



            conduct.3  When Ferguson asked  to be allowed to consult with



                                
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            2.  Ferguson  had  also executed  a  written  plea agreement.

            Indeed,  he  had  executed the  agreement  after  refusing to

            execute an earlier one proffered by the government because he

            did not like one of its clauses.



            3.  The district court asked  Ferguson specifically about all

            of the counts to which he was pleading  guilty, except one --

            Count  2, the conspiracy charge.  Although the district court

            did  not ask Ferguson specifically  about Count 2, the nature

            of   the  conspiracy  charge   was  explained  thoroughly  to

            codefendant  Patrick Culbreath  in  Ferguson's presence,  and



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his mother, he was  permitted to do  so.  Finally, the  court



            specifically  asked Ferguson whether he was entering his plea



            voluntarily and Ferguson replied that he was.



                      On appeal, Ferguson  appears to refer to  only four



            counts,  Counts 8,  12,  14, and  17,  as being  problematic.



            Ferguson  points out that during  the plea hearing, he denied



            some of the factual foundations of these counts and exhibited



            reluctance to admit that he  knew that drugs were involved in



            the transactions underlying those  counts.  To be  sure, some



            of  Ferguson's responses to  the court's questions  about his



            involvement in Counts 8, 12, 14 and 17 show some confusion on



            his part over the precise requirements for the offenses.  But



            when  Ferguson gave such  responses, the district  court made



            additional  inquiries   of  Ferguson,  asking  him   what  he



            understood  his role to have  been in the  offense.  And when



            questioned  on these counts, Ferguson often admitted to facts



            sufficient  to  uphold  the  charges  and, more  importantly,



            exhibited  a basic  understanding of  the  conduct which  the



            government alleged  was  criminal.4    The  court's  detailed



                                
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            Ferguson does not  claim on appeal that such  a procedure was

            inadequate to apprise him of the nature of that charge.



            4.  Count 8  was based on a July 16, 1992 drug transaction at

            the  Brigham and  Women's  Hospital  at  which  Ferguson  was

            present.  Although  at first Ferguson  denied knowing that  a

            drug  sale was occurring,  upon further questioning  from the

            court,   he  admitted  to  the  court  that  he  entered  the

            undercover  officer's vehicle and  told him that  the persons

            delivering the cocaine would "be  there."  Count 12 was based

            on a September  15, 1992 attempted sale of heroin  at the New



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inquiry on these counts supports the conclusion that Ferguson



            understood the  nature of  the charges  against him  on these



            counts.  See United States  v. Pellerito, 878 F.2d 1535, 1542
                     ___ ___________________________



            (1st  Cir.  1989)  (a  searching   Rule  11  inquiry  was  "a



            circumstance of some importance" in showing that the district



            court properly determined that  the defendant understood  the



            nature of the charges to which he was pleading guilty).



                      Indeed, Ferguson's claim that he did not understand



            the  nature  of these  charges is  seriously undercut  by his



            clear admission at  the plea hearing of his guilt on Count 7,



            a distribution  charge under  21 U.S.C.    841(a)(1)  arising



            from a  transaction in which Ferguson delivered  cocaine to a


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            England Medical Center.   As  to this  count, the  government

            stated that Ferguson  had delivered to an  undercover officer

            three bricks of what was supposed to have been heroin and was

            later  determined to be procaine,  a cutting agent.  Although

            Ferguson initially denied his involvement in the transaction,

            Ferguson  eventually  agreed   with  the  government   as  to

            everything  it  stated regarding  the transaction  during the

            plea hearing except its claim that he had been the person who

            physically  delivered the bricks  to the  undercover officer.

            He admitted being  involved in  the transaction  and that  he

            believed  at the  time  of the  transaction that  it involved

            drugs.

                      Count  14  involved   an  October  29,   1992  drug

            transaction at a Farmer's Market on River Street in Boston at

            which  Ferguson   was  present.    Again,  although  Ferguson

            initially  indicated  that   he  was  unaware  that   a  drug

            transaction was occurring when he was at the Farmer's Market,

            he later stated that  while he was at the Farmer's Market lot

            in his car he "surmised" that the transaction involved drugs.

                      Finally,  Count 17 involved a February 4, 1993 drug

            transaction  at a Mobil gas station in Mattapan that Ferguson

            aided.   As Ferguson notes  in his brief,  he admitted at the

            plea hearing to delivering a message to one of the principals

            that the transaction would go forward on a certain date.



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co-conspirator's  house  to  have   it  cooked  into  crack.5



            Ferguson concedes on appeal that  he understood the nature of



            the  charge contained in  Count 7.   Counts 8  and 14, which,



            like Count  7, were each  charges of distribution  of cocaine



            base in violation of 21 U.S.C.   841(a)(1),  involved conduct



            identical in  nature to that  charged in Count 7,  and simply



            involved acts occurring on different dates involving the same



            basic  actions.   Similarly,  Count 12,  while  styled as  an



            "attempt"  because  of   the  chemical  composition  of   the



            substance  distributed, was  also essentially  a distribution



            charge.6     Under  these  circumstances,   Ferguson  "should


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            5.  The  government has noted that because of this admission,

            Ferguson's appeal, even if successful, will have no effect on

            his term of imprisonment because Ferguson  was sentenced to a

            concurrent 120 months of imprisonment  on Count 7.  This fact

            does  not mean  that  this  appeal fails  to  present a  live

            controversy,  however.  The  other  counts apparently  impose

            longer periods of supervised release than Count 7 (five years

            for Counts  2, 8, 14, and 17, as  compared to three years for

            Count  7)  and  each  count  increased  the  amount  of   the

            assessment  ($50 per  count).   Moreover,  Ferguson may  face

            collateral consequences for his convictions on the additional

            counts.  Cf. Benton v.  Maryland, 395 U.S. 784, 787-91 (1969)
                     ___ ___________________

            (the  existence   of  concurrent  sentences   does  not   bar

            consideration of  challenges to multiple  convictions because

            there  may  be   collateral  consequences  to   the  multiple

            convictions).  Thus, there is  enough at stake in this appeal

            to have us decide whether Ferguson may  properly withdraw his

            plea as to the other counts.       



            6.  Ferguson's  involvement in Count  17 was presented  on an

            aiding and abetting  theory.  Whether  or not Ferguson  fully

            understood the subtleties of aiding and abetting law,  at the

            hearing he  acknowledged a  basic understanding  that he  was

            being  charged with facilitating  the offense when  he stated

            that he told the undercover officer that the drug transaction

            of February 4 was "on" for that night.     



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reasonably have .  . . understood,"  United  States v. Cotal-
                                                 ________________________



            Crespo,  47 F.3d  1, 4  (1st Cir.  1995), the  nature  of the
            ______



            charges to which he was pleading guilty on  Counts 8, 12, and



            14. 



                      Although  the  defendant's   understanding  of  the



            nature of  the charges to  which he  is pleading  is a  "core



            concern" of Rule 11, see  Cotal-Crespo, 47 F.3d at 4,  in the
                                 ___  ____________



            absence of a total failure  to address this concern, the plea



            cannot be set  aside unless  the irregularities  in the  plea



            proceeding affect the defendant's "substantial rights."  Fed.



            R. Crim. P. 11(h) ("Any variance from the procedures required



            by this  rule which does not affect  substantial rights shall



            be  disregarded.").   Ferguson has  not  articulated how  the



            district court's  plea proceedings  affected his  substantial



            rights.  He does  not argue that he pled guilty  to crimes he



            did not commit.  He did not object to the presentence report,



            which established a  factual basis for the plea.   Cf. United
                                                               ___ ______



            States v. Zorrilla, 982 F.2d 28, 30 (1st Cir. 1992) (district
            __________________



            court's failure to  determine factual basis for the  plea was



            harmless  error under Rule 11(h) where the presentence report



            and probable cause hearing  revealed that appellant's conduct



            satisfied the elements  of the crime charged),  cert. denied,
                                                            ____________



            113 S. Ct. 1665  (1993).  Nor  does Ferguson suggest that  if



            the   court  had  conducted   a  further  inquiry   into  his



            understanding of the nature of the offense, he would not have


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pled guilty.  See  id. at 31  ("As appellant has suffered  no
                          ___  ___



            concrete prejudice other than entering a plea he now regrets,



            we cannot set his plea aside."). 



                      Given  that Ferguson  has  not shown  a  sufficient



            deviation  from the  Rule 11  requirements  to overcome  Rule



            11(h),  it follows that he has  not met his burden under Rule



            32(e)  of showing  a  "'fundamental  defect which  inherently



            results in a complete miscarriage of justice' or 'an omission



            inconsistent   with   the   rudimentary   demands   of   fair



            procedure.'"   Fed.  R.  Crim.  P.  32(d)  [now  Rule  32(e)]



            advisory committee notes to 1983 amendments.  Ferguson is not



            entitled to withdraw his guilty plea.



                      For the  foregoing reasons, Ferguson's  judgment of



            conviction is affirmed.
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