United States v. Lopez-Pineda

• Court: Court of Appeals for the First Circuit
• Decided: June 6, 1995
• Docket: 94-1967
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1967



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                JOSE R. LOPEZ-PINEDA,



                                Defendant, Appellant.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                                     
                                 ____________________



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ____________________


Rafael D. Castro Lang for appellant.
             _____________________

             Antonio  R. Baz n,  Assistant United  States Attorney,  with whom
             _________________

        Guillermo Gil,  United States  Attorney, and Jos   A. Quiles-Espinosa,
        _____________                                ________________________

        Senior Litigation Counsel, were on brief for appellee.


____________________



                                     June 6, 1995

                                                     
                                 ____________________



CYR, Circuit Judge.  After Jose R. Lopez Pineda  ("Lop-
                    CYR, Circuit Judge.
                         _____________



          ez")  was convicted  and  sentenced on  one  count of  possessing



          cocaine  with intent to distribute, see 21 U.S.C.   841(a)(1), he
                                              ___



          initiated the instant appeal seeking to set aside his guilty plea



          based on defects in the change-of-plea colloquy  conducted by the



          district  court.  We affirm  the judgment of  conviction and sen-



          tence.


I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    On February 25, 1994,  Lopez, a crew member aboard  the



          M/V Meridian, attempted to  import into Puerto Rico approximately



          one kilogram of cocaine, and  a quantity of Rohypnol, a  drug not



          approved by the Food and  Drug Administration ("FDA").  Following



          his arrest and indictment on three federal charges, see 21 U.S.C.
                                                              ___



            321(p) (introduction  of non-FDA approved drug  into the United



          States);    841(a)(1),(b)(1)(B) (possession  of  one kilogram  of



          cocaine,  with intent  to distribute);    952(a)  (importation of



          cocaine  into  the  United  States), Lopez  entered  into  a plea



          agreement  whereby  he  would plead  guilty  to  the  section 841



          violation  and the  government  would dismiss  the two  remaining



          charges.  The  plea agreement explicitly stated that  the cocaine



          charge under  section 841  carried "a  minimum statutory  term of



          five (5)  years of imprisonment .  . . with a  term of supervised
          ________



          release of at least four (4) years" (emphasis in original).
                              ________



                    Prior to the Rule  11 change-of-plea hearing before the



          district court, Lopez  also completed    in  his own hand  and on



                                          2



the advice of counsel     an extensive Spanish-language question-



          naire which inquired, inter alia,  whether he knew and understood
                                _____ ____



          the mandatory  minimum term of  imprisonment and  the nature  and



          effect of the term of supervised release to which his guilty plea



          would expose him.  Lopez  responded by correctly indicating  that



          the mandatory  minimum term of imprisonment on the cocaine charge



          was  five years and, further,  that he understood  the nature and



          effect of supervised release.  



                    During  the Rule  11  hearing, the  district court  ad-



          dressed  Lopez in  open court and  inquired, among  other things,



          into whether he understood that he was waiving his constitutional



          right  to  trial by  jury, with  all  its appurtenant  rights and



          privileges;  whether he had been  coerced into accepting the plea



          agreement;  whether he  understood  that the  plea agreement,  if



          approved, would not be  binding upon the court and  that he would



          not  be allowed  to  withdraw his  guilty plea  in  light of  the



          sentence imposed; his knowledge of the maximum sentence permitted
                                                 _______



          under section 841(b)(1)(B); his  competency to plead; the factual



          grounds for his guilty plea; and his general understanding of the



          effects of the sentencing guidelines.  



                    Lopez  further confirmed  that the  plea  agreement had



          been  explained to  him by  court-appointed counsel  before Lopez



          signed  it and that  Lopez had  completed the  elaborate district



          court  questionnaire,  with the  assistance  of  counsel, shortly



          before appearing in court for the Rule 11  hearing.  The district



          court neglected, nonetheless, to inquire explicitly whether Lopez


3



understood  that he  faced a  mandatory minimum  five-year prison
                                        _________ _______



          sentence  and a  mandatory minimum  four-year term  of supervised
                           _________ _______



          release, as  fully  explained  in  the plea  agreement  and  less



          comprehensively related in the district court questionnaire.  


II
                                          II



                                     DISCUSSION 
                                     DISCUSSION
                                     __________



                    Lopez correctly contends that Federal Rule  of Criminal



          Procedure 11 mandates  that the district court inquire    direct-
                       ________



          ly, personally and in  open court    whether the  defendant knows



          and understands any mandatory minimum prison sentence and term of



          supervised release attendant upon  a conviction based on  a plea.



          See Fed.  R. Crim. P. 11(c) ("Before accepting a plea of guilty .
          ___



          . . the court must address the defendant personally in open court
                        ____



          and  inform the  defendant of, and  determine that  the defendant



          understands . . . the mandatory minimum penalty provided by law .



          .  . including  the effect  of any  special parole  or supervised



          release term.")  (emphasis added).   Nevertheless, Lopez  has not



          demonstrated that  the  clear failure  of the  district court  to



          comply with Rule 11 warrants  vacation of the guilty plea in  the



          circumstances presented.



                    Rule  11 was  designed  to ensure  that defendants  who



          enter  guilty pleas do so with full "'understanding of the nature



          of the charge  and the  consequences of [their]  plea.'"   United
                                                                     ______



          States v. Cotal-Crespo,  47 F.3d  1, 4 (1st  Cir. 1995)  (quoting
          ______    ____________



          McCarthy v.  United States, 394  U.S. 459, 467  (1969)), petition
          ________     _____________                               ________



          for cert. filed,   (U.S. May 1, 1995) (No. 94-9076-CFY).  Compli-
          ___ _____ _____



                                          4



ance  with Rule 11  enables the district  court to arrive  at its



          "own determination of a  guilty plea's voluntariness . .  . [and]



          also  facilitates  that  determination  in any  subsequent  post-



          conviction proceeding  based  upon  a claim  that  the  plea  was



          involuntary."   United States  v. Medina-Silverio,  30 F.3d  1, 3
                          _____________     _______________



          (1st Cir. 1994) (quoting McCarthy, 394 U.S. at 467).  
                                   ________



                    A  total failure  to conduct  the required  colloquy in



          open court  may invalidate  the plea, even  though the  defendant



          acknowledges in  open court  that he  was provided  beforehand   



          through written  documents and the assistance of  counsel    with



          all  pertinent information contemplated by  Rule 11.   Id. at 3-4
                                                                 ___



          (absent requisite  oral inquiry  by district court,  responses to



          written questionnaire containing  relevant Rule 11  inquiries are



          insufficient).  "Where a district court neither conducts a direct



          personal interrogation, nor advises  the defendant of his rights,



          all  substantially as  required under  Rule 11,  there can  be no
               _____________



          sufficient  basis for finding that the guilty plea was voluntary,



          intelligent or otherwise valid."  Id. (emphasis added).  
                                            ___



                    On the other hand, where the district court conducts an



          otherwise adequate  Rule  11  colloquy  but  inadvertently  omits



          material subject  matter contemplated by  Rule 11, we  may review



          the  record, including  the change-of-plea  and sentencing  tran-



          scripts, with a  view to whether the omission  was harmless.  See
                                                                        ___



          Cotal-Crespo,  47  F.3d at  5-7  (holding  "harmless" a  district
          ____________



          court's failure to inform defendant of right to remain silent and



          confront witnesses, and of potential exposure to perjury prosecu-


5



tion for giving false testimony); see also Fed. R. Crim. P. 11(h)
                                            ___ ____



          ("Any variance  from the procedures  required by this  rule which



          does  not affect substantial rights shall  be disregarded.").  As



          the  omissions Lopez points to in the present case clearly do not



          approximate  a total lack of compliance with Rule 11, cf. Medina-
                                                                __  _______



          Silverio, 30 F.3d at 3-4, we consider whether the failure person-
          ________



          ally  to  inform the  defendant of  the mandatory  minimum prison



          sentence  and term  of supervised  release disabled  the district



          court from determining that the  core Rule 11 requirements essen-



          tial to a valid guilty plea were met:  1) absence of coercion; 2)



          understanding of the charges; and 3) knowledge of the consequenc-



          es of  the guilty plea.   See  Cotal-Crespo, 47  F.3d at  4.   We
                                    ___  ____________



          discern  no disabling infirmity in the core Rule 11 findings made



          by the district court.1  



                    Lopez neither claims that  his guilty plea was coerced,



          nor that he  lacked understanding  of the charges.   Instead,  he



          alleges that he did not understand the sentencing consequences of



          his guilty plea, because counsel below informed him that he would



          be sentenced under the guidelines rather than in accordance  with

                              
          ____________________



               1Lopez  urges us to enlarge upon the required Rule 11 collo-

          quy  by directing  district  courts to  inform defendants  that a

          mandatory minimum  sentence  prescribed by  statute  overrides  a

          lesser guideline sentencing  range.  We decline, for two reasons.

          First, a  recent guideline  amendment precludes any  such blanket

          directive.   See note 3  infra.  Second,  the presentence report,
                       ___         _____

          which  contains the proposed guideline sentencing calculation, is

          not necessarily disclosed to  the district court until after  the

          guilty plea  has been approved.   See  Fed. R. Crim.  P. 32(b)(3)
                                            ___

          ("The report must not be  submitted to the court or its  contents

          disclosed  to anyone unless the defendant  has consented in writ-

          ing, has pleaded  guilty or  nolo contendere, or  has been  found

          guilty.").



                                          6



the mandatory minimum sentence prescribed by statute, contrary to



          the explicit terms of  the plea agreement signed by Lopez and the



          handwritten  responses he  gave to  the district  court question-



          naire.2



                    The  instant  Rule 11  claim  may  be assessed  against



          essentially the same standards governing change-of-plea requests,



          see Cotal-Crespo, 47 F.3d at 8, by evaluating    
          ___ ____________



                    (1) the plausibility of the reasons prompting

                    the requested change of plea; (2) the  timing

                    of the defendant's  motion; (3) the existence

                    or nonexistence of an assertion of innocence;

                    and  (4)  whether, when  viewed  in  light of

                    emergent circumstances,  the defendant's plea

                    appropriately may be characterized  as invol-

                    untary, in derogation of the requirements im-

                    posed by  Fed. R.  Crim. P. 11,  or otherwise

                    legally suspect.



          United States v.  Raineri, 42 F.3d 36, 41 (1st  Cir. 1994), peti-
          _____________     _______                                   _____



          tion for cert. filed, (U.S. May 3, 1995) (No. 94-9121-CFY).  
          ____ ___ _____ _____



                    First, the purported reasons for requesting vacation of



          the plea are  suspect.  We are not persuaded  by the bare allega-



          tion  that former counsel     after advising Lopez  to enter into



          the plea agreement and assisting  him in completing the  detailed



          district court  questionnaire    directly informed  him, contrary



          to both those  documents, that  something less  than the  minimum
                                                                    _______



          prison  sentence mandated by statute  would be imposed.   Nor did



          Lopez  take issue  with the  clear statement  in the  presentence



          report  that the district court  must impose a  sentence not less



          than the  mandatory minimum prescribed  in 21 U.S.C.    841(b)(1-



                              
          ____________________



               2Lopez is represented by different counsel on appeal.



                                          7



)(B).  Indeed, at sentencing, Lopez's counsel urged the  district



          court "in [its] mercy to give [Lopez] the minimum mandatory of 60



          months."   Cf. United  States v. Japa, 994  F.2d 899, 903-94 (1st
                     __  ______________    ____



          Cir. 1993)  (district court's  failure to inquire  into requisite



          criminal intent,  combined with prosecutor's  failure to describe



          evidence  of intent  in relating  factual basis for  guilty plea,



          rendered harmless  by absence of objection  to presentence report



          on grounds of lack of intent).  



                    Second, the  belated attempt to  set the plea  aside on



          appeal,  rather than  before sentencing,  substantially heightens



          Lopez's burden.   See Fed R.  Crim. P.  32(e) (Once sentence  has
                            ___



          been imposed, "a  plea may be set aside only  on direct appeal or



          by motion under  28 U.S.C.   2255.").   In order to  prevail on a



          post-sentencing  Rule  11  challenge,  the  defendant  must  come



          forward with  sufficient evidence  to demonstrate  "a fundamental



          defect  which inherently  results  in a  complete miscarriage  of



          justice," Hill v. United States, 368 U.S. 424, 428 (1962), or "an
                    ____    _____________



          omission inconsistent with the rudimentary demands of fair proce-



          dure."  Japa,  994 F.2d at  902 (quoting Fed.  R. Crim. P.  32(c)
                  ____



          advisory committee's notes (1983)).  



                    Third, Lopez does not  assert legal innocence.  Rather,



          he explicitly urges  vacation of the challenged sentence in order



          to enable  him to plead guilty anew, which might permit him to be



          sentenced  under  the more  generous  regimen  prescribed in  new


8



U.S.S.G.   5C1.2.3  



                    Finally,  the  belated  manner  in which  the  Rule  11



          challenge has been presented denied the government any opportuni-



          ty to develop the district court record with a view to whether or



          not Lopez was misinformed by counsel below regarding the sentenc-



          ing consequences of his  guilty plea, as Lopez alleges  in direct
                                                __ _____ _______  __ ______



          contravention of the plea  agreement he signed, and  the district
          _____________ __ ___ ____  _________ __ ______  ___  ___ ________



          court questionnaire he completed,  with the advice and assistance
          _____ _____________ __ _________   ____ ___ ______ ___ __________



          of the  same attorney.    Cf. Raineri,  42 F.3d  at 42  (although
          __ ___  ____ ________     ___ _______



          district  court  misinformed  defendant  as to  maximum  penalty,
          ________  _____                                 _______



          defendant  failed to indicate that  he had ever  been informed he



          would receive a lower sentence than that actually imposed).  



                    The  absence of a sufficiently developed factual record



          relating to  whether former  counsel misled Lopez  concerning the



          sentencing  consequences of  his guilty  plea precludes  reliable



          review on direct appeal.  Consequently,  the attempt to insinuate



          an  ineffective assistance claim on direct appeal must be reject-



          ed, see  United States v. Tuesta-Toro, 29 F.3d 771, 776 (1st Cir.
              ___  _____________    ___________



          1994)  (holding that  undeveloped, fact-bound  ineffective assis-



          tance claim must be asserted on collateral review), cert. denied,
                                                              _____ ______



          115  S. Ct. 947 (1995),  without prejudice to  its presentment on

                              
          ____________________



               3Lopez was  sentenced before the promulgation  of U.S.S.G.  

          5C1.2, which  provides that  sentences for  qualifying first-time

          drug offenders  are to be determined under  the sentencing guide-

          lines  even  though  the guideline  sentence  is  lower  than the

          mandatory minimum sentence prescribed by statute.  See U.S.S.G.  
                                                             ___

          5C1.2.  U.S.S.G.   5C1.2  is not retroactive, however,  since the

          amendment  promulgating it  is not  listed in  U.S.S.G.   1B1.10.

          See DeSouza v. United  States, 995 F.2d 323, 324  (1st Cir. 1993)
          ___ _______    ______________

          (amendmentsnot listed in   1B1.10 not given retroactive effect). 



                                          9



collateral review under 28 U.S.C.   2255.  Id.
                                                     ___


10



For the  foregoing reasons, the judgment  of conviction



          and sentence is affirmed. 



                    Affirmed.  
                    Affirmed
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11