[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals For the First Circuit
No. 98-1919
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
MARK DANIEL MARIN-CANALES,
Defendant, Appellant.
No. 98-1920
ALEXANDER RODRIGUEZ-MIRANDA,
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge. Zygmunt G. Sominski on brief for appellant Mark Daniel Marin-Canales. Carmen R. De Jesus on brief for appellant Alexander Rodriguez-Miranda. Camille Velez-Rive, Assistant United States Attorney, Guillermo Gil, United States Attorney, and Jorge E. Vega- Pacheco, Assistant United States Attorney, on brief for appellee.
April 24, 2000 COFFIN, Senior Circuit Judge. Defendants-appellants Mark
Daniel Marin-Canales and Alexander Rodriguez-Miranda request
that this court vacate their pleas of guilty to cocaine
possession charges and challenge various aspects of their
sentences. Finding no errors in the trial court's acceptance of
defendants' guilty pleas or imposition of their sentences, we
affirm.
I. Factual Background
On May 9, 1997, a United States Customs Service airplane
observed a low-flying Cessna 210 aircraft proceeding from South
America into the United States. The aircraft entered the United
States over Ponce, Puerto Rico, and it was pursued to the
vicinity of Cidra, Puerto Rico, although it evaded pursuers by
flying under electrical wires. The Puerto Rico Police
Department received three anonymous calls collectively stating
that a low-flying plane was throwing out bales to a farm in
Cidra where a Mitsubishi Expo van and a BMW waited and that some
of the bales had been placed in the trunk of the BMW. At least
one caller provided the license plate numbers of the vehicles.
The Puerto Rico police first located the BMW, occupied by
Marin and another participant, and upon stopping and searching
it, discovered 28 kilograms of cocaine in the trunk wrapped
identically to the 150 kilograms of cocaine found on the farm.
-4- The van, occupied by Rodriguez and another participant, was
subsequently stopped and two nine-millimeter semi-automatic
pistols were later found by a subcontractor maintaining the
impounded vehicle for the United States Customs Service.
Both defendants entered into plea agreements with the United
States under which they pled guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), in
exchange for the dismissal of other counts.1 In each, there was
no agreement as to the defendant's criminal history category
(CHC). Marin's plea agreement stated that if his CHC were I and
if he qualified for the "safety valve" provision of U.S.S.G. §
5C1.2,2 the pertinent sentencing range would be 87 to 108 months
and the government would recommend 87 months. Rodriguez's plea
agreement stated that if his CHC were I, the applicable
sentencing range would be 168 to 210 months and the government
would recommend 168. Both agreements spoke in terms of
contingencies – in both, the defendant was promised only that
the government would recommend a sentence at the lower end of
1Marin pled guilty to count IV of the five-count indictment, which charged possession of 28 kilograms of cocaine, and Rodriguez pled guilty to count V, which charged possession of 150 kilograms. 2The "safety valve" provision releases the minimum mandatory sentence when a defendant meets certain criteria, including having a CHC of I. See U.S.S.G. § 5C1.2(1).
-5- the applicable range, whatever that might be. Both defendants
agreed that their sentences would be within the sound discretion
of the sentencing judge and would be imposed in accordance with
the Sentencing Guidelines.3
The court accepted defendants' guilty pleas and sentenced
them pursuant to the United States Sentencing Guidelines.
Because Marin's CHC was II, he was not eligible for the safety
valve and the applicable sentencing range was 121 to 151 months.
The court accepted the government's recommendation of a sentence
at the lower end, 121 months. Because Rodriguez's CHC was II,
the applicable sentencing range was 188 to 235 months. The
court accepted the government's recommendation of 188 months.
II. Denial of Rodriguez's Motion to Suppress
Prior to pleading guilty, Rodriguez moved for the
suppression of his warrantless arrest and all evidence flowing
from the arrest, arguing that the arrest was effected without
probable cause in violation of his Fourth Amendment rights.
See Beck v. Ohio, 379 U.S. 89, 91 (1964). The court denied
3 Both agreements explained that "defendant . . . is aware that his sentence is within the sound discretion of the sentencing judge and will be imposed in accordance with the United States Sentencing Guidelines." Marin's plea agreement also declared: "Defendant . . . is fully aware . . . that if his criminal history is greater than I, his sentence will be increased accordingly, and that the Court is not bound by this plea agreement."
-6- Rodriguez's motion and he subsequently entered into the plea
agreement. It is well established that by entering an
unconditional guilty plea, a defendant waives all non-
jurisdictional defects. See Tollett v. Henderson, 411 U.S. 258,
267 (1973) (explaining that after a defendant has pled guilty,
"he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea"); Acevedo-Ramos v. United States, 961
F.2d 305, 307 (lst Cir. 1992) ("It is clear that a plea of
guilty to an indictment is an admission of guilt and a waiver of
all non-jurisdictional defects."). Because the issues raised by
Rodriguez are non-jurisdictional, he has waived the opportunity
for appellate review by entering an unconditional guilty plea.4
III. Voluntariness of Defendants' Guilty Pleas
Both defendants seek to have their guilty pleas vacated due
to what they define as defects in the plea hearing proceedings,
allegedly in violation of Fed. R. Crim. P. 11. The advisory
committee's note to Fed. R. Crim. P. 32, which authorizes plea
4After filing his brief, Marin requested that he be allowed to adopt the arguments made by Rodriguez with regard to the motion to suppress. Because Marin was not a party to the motion to suppress, he cannot appeal its denial or raise the issues it presented. See Playboy Enters., Inc. v. Public Serv. Comm'n of Puerto Rico, 906 F.2d 25, 40 (lst Cir. 1990) (arguments not made before district court or raised too late on appeal are waived). Even if he had been a party to the motion, his arguments were waived when he pled guilty, as we have explained.
-7- withdrawal motions, explains that when a defendant moves for the
first time on direct appeal to set aside his guilty plea, "the
applicable standard is that stated in Hill v. United States, 368
U.S. 424 (1962): '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 advisory committee's note; 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."). We acknowledge, as we did in United States v.
Carrington, 96 F.3d 1 (lst Cir. 1996), that the standard upon
which we base our review of the defendant's request to vacate
his guilty plea is "'somewhat cloudy.'" See id. at 5 n.2
(quoting United States v. Martinez-Martinez, 69 F.3d 1215, 1219
(lst Cir. 1995)). In other cases, we have applied the harmless
error standard. See, e.g., United States v. Parra-Ibanez, 936
F.2d 588, 598 & n.24 (lst Cir. 1991). Because we find no error
at all in the Rule 11 proceedings, we need not decide this
issue.
We consider primarily four factors when reviewing a request
to withdraw a guilty plea:
(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
-8- viewed in light of the emergent circumstances, the defendant's plea appropriately may be characterized as involuntary, in derogation of the requirements imposed by Fed. R. Crim. P. 11, or otherwise legally suspect.
United States v. Parrilla-Tirado, 22 F.3d 368, 371 (lst Cir.
1994) (footnote omitted).
Regarding the first factor, defendants proffer no particular
reason for requesting changes of plea, other than alleged
involuntariness. Second, their requests were made thirteen
months after their change of plea hearings and nine months after
sentencing without explanation for the delay.5 We have explained
that "the more a request is delayed – even if made before
sentence is imposed – the more we will regard it with disfavor."
United States v. Isom, 85 F.3d 831, 838 (lst Cir. 1996). Third,
defendants do not assert their innocence, which weights the
balance against allowing them to withdraw their pleas. See id.
at 839.
Mindful of the fact that defendants start from this
disadvantaged point, we consider the final factor. Our main
concern here is whether defendants' guilty pleas were "knowing,
5Although both defendants filed notices of appeal in June 1998, they did not allege error in the Rule 11 proceedings until filing their March 1999 statement of issues. We recognize that the delay in receiving transcripts hindered some aspects of defendants' arguments with regard to the Rule 11 proceedings, but other aspects – for example, that the plea agreements were misleading – could easily have been identified prior to the receipt of transcripts.
-9- voluntary and intelligent within the meaning of [Federal Rule of
Criminal Procedure] 11." United States v. Cotal-Crespo, 47 F.3d
1, 3 (lst Cir. 1995). Fed. R. Crim. Pro. 11(d) states:
The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. 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.
The rule encompasses three "core concerns": "1) absence of
coercion; 2) the defendant's understanding of the charges; and
3) the defendant's knowledge of the consequences of the guilty
plea."
United States v. Gray, 63 F.3d 57, 60 (lst Cir. 1995).
Furthermore, we review the "totality of the circumstances
surrounding the Rule 11 hearing, rather than apply a 'talismanic
test.'" Cotal-Crespo, 47 F.3d at 4-5 (citation omitted).
A. Rodriguez
Defendant Rodriguez makes only general allegations that the
court erred in accepting his guilty plea and points us to no
specific error. Assuming that he has preserved this argument,
we peruse the Rule 11 proceedings for general error and we find
none. Instead, we discover that the court conducted a
-10- "comprehensive inquiry," akin to that upheld in Isom, 85 F.3d at
835-37.
The court ascertained that Rodriguez had signed the petition
to change his plea to guilty, had fully answered a plea
questionnaire, and had signed the plea agreement. Rodriguez
responded affirmatively to the court's questions about whether
he had discussed the indictment against him with his counsel,
whether he understood the nature of the charge to which he was
pleading guilty, and whether he understood that he waived
certain fundamental rights by pleading guilty (such as the
rights to remain silent, be assisted by counsel, confront and
cross-examine witnesses against him, present witnesses on his
own behalf, and hold the prosecution to its burden of proving
him guilty beyond a reasonable doubt). After this, Rodriguez
confirmed that he had no doubts about pleading guilty.
Rodriguez affirmatively answered the court's particular
questions about his understanding of the way in which his
sentence would be determined and that a 168 month sentence was
contingent upon a CHC of I. Further, Rodriguez indicated that
he understood that the only agreement was that which was in
writing, that the plea agreement had been translated to him,
that he had not been intimidated, threatened, or coerced in
-11- regard to his guilty plea, and that he pled guilty freely,
willingly, knowingly, and voluntarily.
Thus, the court addressed the three core concerns that must
be considered when a defendant wishes to enter a guilty plea;
the court's questions confirmed that Rodriguez had not been
coerced, that he understood the charges, and that he understood
the consequences of his guilty plea, including sentencing
procedures and possibilities.
B. Marin
Defendant Marin makes more particularized contentions
regarding the Rule 11 proceeding. He asserts that the court
erred by setting deadlines for the filing of a change of plea
petition that created undue pressure on him, making improper
comments during the hearing, failing to correctly apprise him of
the sentence he faced, neglecting to inquire about his failure
to answer three questions on the plea questionnaire, and failing
to order a presentence investigation prior to the acceptance of
his plea.
First, Marin complains about the plea filing deadlines set
by the court pursuant to Fed. R. Crim. P. 11(e)(5). Defendants
were indicted on May 14, 1997, and pled not guilty on that date.
The docket reflects that on January 27, 1998, the court set a
deadline for change of plea petitions of February 4, due to an
-12- impending trial date of February 9. On February 6, Marin filed
his request. In short, Marin had nearly nine months from his
indictment and entry of a not guilty plea until the deadline to
change his plea, the court set a necessary deadline just prior
to trial, and Marin apparently made no effort to seek additional
time.
Second, the specific comments of the court that Marin
complains of, to the effect that he had a good attorney, could
not have indicated to Marin that he would receive a particular
sentence nor could it have coerced Marin's plea in any way. The
court very clearly explained to Marin, and Marin acknowledged
that he understood, that the 87 month sentence would be
applicable only if he had a CHC of I and qualified for the
safety valve. Further, the court asked Marin three times if he
understood that if he failed to comply with the safety valve,
his minimum term of imprisonment would be 120 months, to which
Marin responded affirmatively. Marin relies on United States v.
Padilla, 23 F.3d 1220 (7th Cir. 1994), in which we suggested
that the appropriate remedy when a defendant was never informed
on a mandatory minimum was to allow the defendant to withdraw
his guilty plea. See id. at 1224. In the instant case,
-13- however, the court did apprise defendant of a 120 month minimum,
only one month less than defendant's actual sentence.6
Third, the three questions of the forty-four question plea
questionnaire which Marin failed to answer pertained to whether
he had been coerced, or induced by promises, to enter a plea of
guilty. Nevertheless, at Marin's change of plea hearing, the
court questioned him as to whether he had been intimidated,
coerced, or forced into pleading guilty by anyone, and he
responded negatively.
Fourth, Marin alleges that the court erroneously failed to
order a presentence investigation prior to accepting his plea,
relying on U.S.S.G. § 6B1.1(c), which states that the court
"shall defer its decision to accept or reject any nonbinding
recommendation pursuant to Rule 11(e)(1)(B), and the court's
decision to accept or reject any plea agreement pursuant to
Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been an
opportunity to consider the presentence report." The commentary
6Marin’s argument suggests that of the defendant in United States v. Hernandez-Wilson, 186 F.3d 1 (lst Cir. 1999), in which we agreed with the defendant that the court had misled him to believe that he was eligible for the safety valve provision. See id. at 6. In that case, however, the prosecutor, defense counsel, and the court believed the defendant was eligible for the safety valve and the court indicated that if defendant complied with certain conditions he would be eligible for the safety valve, although ultimately his criminal history category prevented him from qualifying. See id. at 5-6.
-14- to the Guideline states that it is intended to parallel Rule
11(e), outlining plea agreement procedure. As the Fourth
Circuit has explained, the Guidelines take this stance in order
to "carry out the Congressional intent that prosecutors do not
undermine the workings of the Sentencing Guidelines." United
States v. Ewing, 957 F.2d 115, 117 (4th Cir. 1992).
In United States v. Sanchez-Barreto, 93 F.3d 17 (lst Cir.
1996), responding to the same argument, we explained that the
flaw in the defendant's argument was that "he offers no reason
for equating acceptance of his guilty plea with the acceptance
of a plea agreement under § 6B1.1(c)." Id. at 24; see also
Ewing, 957 F.2d at 118 (same). Here, when accepting Marin's
guilty plea at the change of plea hearing, the court repeatedly
emphasized that his sentence was not definite and would be
determined at his sentencing hearing. By sentencing Marin in
accord with the Sentencing Guidelines, after reviewing his
presentence report, the court fully accepted the plea agreement
at the sentencing hearing. In addition, Marin has not
explained how his interpretation of U.S.S.G. § 6B1.1(c) can be
aligned with Fed. R. Crim. P. 32(b)(3), which prohibits
disclosure of a presentence report unless the defendant has
consented, pled guilty or nolo contendere, or been found guilty,
other than to suggest that requiring the presentence
-15- investigation at the change of plea hearing would benefit the
defendant. See Sanchez-Barreto, 93 F.3d at 25 ("The overarching
purpose served by the PSR is to assist the district court at
sentencing.").7 The district court's procedure was entirely in
accord with the Sentencing Guidelines as well as the Federal
Rules of Criminal Procedure.
Finally, Marin alleges that his plea was involuntary.
Again, a review of the transcript of the proceedings establishes
that the court engaged in a comprehensive inquiry. Marin
stated, in response to the court's questioning, that he had
completed one year of college, that he had not consumed any
medication or alcohol in the prior twenty-four hours, and that
he understood the proceedings. He acknowledged having an
understanding of the indictment, satisfaction with his counsel's
performance, and awareness of the fundamental rights he was
waiving by pleading guilty. In addition, the court took pains to
explain the sentencing possibilities to Marin, which were laid
out in the plea agreement, and which Marin affirmed that he
understood. Further, the court complied with Fed. R. Crim. P.
7 Marin makes the related argument that the court erred because it accepted the plea agreement before his CHC was determined. As just explained, the court did not accept the plea agreement until sentencing when Marin's CHC was determined. Further, the plea agreement explicitly stated that the parties did not agree on Marin's CHC and based all subsequent sentencing provisions on the contingency that his CHC would be I.
-16- 11(f), contrary to Marin's claims, by determining that there was
a factual basis for his plea. See, e.g., United States v.
Martinez-Martinez, 69 F.3d 1215, 1220 (lst Cir. 1995) ("If,
during the plea colloquy, the government's statement or the
defendant's own version of the facts sets forth all elements and
conduct of the offense, admission to that conduct sufficiently
establishes the defendant's understanding of the charge.").
Again, the court addressed the three core concerns – that
Rodriguez had not been coerced, that he understood the charges,
and that he comprehended the consequences of his guilty plea.
In conclusion, we hold that both defendants entered their
guilty pleas knowingly, intelligently, and voluntarily. They
have failed to establish any reason why their guilty pleas
should be withdrawn.
IV. Sentencing
Both defendants assert that the court made various errors
at sentencing. "We have repeatedly stated in the sentencing
context, as well as in other areas, that issues not presented to
the district court will not be addressed for the first time on
appeal." United States v. Haggert, 980 F.2d 8, 10 (lst Cir.
1992). By not raising their arguments before the district
-17- court, defendants have waived many of their arguments.8 The one
exception regards their requests for downward departures in
their criminal history categories. Only when a sentencing
court's decision not to depart is based upon a mistaken view
that it lacks authority do we have jurisdiction to review it.
See United States v. Leblanc, 24 F.3d 340, 348 (lst Cir. 1994).
Both defendants argued to the district court that their CHCs
be reduced to I pursuant to U.S.S.G. § 4A1.3 because their
criminal history categories overrepresented the seriousness of
their criminal pasts and the likelihood of future crimes.
Rodriguez suggested that his CHC of IV was excessive because
several of the convictions were for juvenile offenses or
misdemeanors. The district court agreed with Rodriguez to an
extent, reducing his CHC to II rather than I. In Marin's case,
the court refused to make the departure, stating that the
Guidelines dictated the sentence "unless there is reason to
depart or I find some reason to [grant] a downward departure in
8 Marin complains that the court in effect vacated a binding plea agreement between himself and the prosecutor. This argument is baseless because the plea agreement itself stated that its sentencing recommendations were not binding on the court. Further, the plea agreement did not purport to set a definite sentence in the event that his CHC was not I. Moreover, in the plea agreement, Marin admitted to understanding that if his CHC was not I and he did not qualify for the safety value provision, he would face a minimum mandatory sentence of 120 months.
-18- this case." By making the departure in Rodriguez's case, the
same day that he sentenced Marin, the court revealed its
understanding of its authority. See, e.g., id. (concluding that
sentencing court understood that it had authority to depart
because it entertained the defendant's argument before denying
departure).
-19- V. Ineffective Assistance of Counsel
Lastly, Marin claims that he was denied the effective
assistance of counsel in violation of his Sixth Amendment right.
"We have held with a regularity bordering on the monotonous that
fact-specific claims of ineffective assistance cannot make their
debut on direct review of criminal convictions, but, rather,
must be presented to, and acted upon by, the trial court."
United States v. Mala, 7 F.3d 1058, 1063 (lst Cir. 1993) (citing
cases). We have allowed exceptions only when the facts are not
in dispute and the record is sufficiently developed for us to
make a reasoned evaluation of the defendant's claims. See id.
In the instant case, the record is not sufficiently
developed to permit reasoned consideration of Marin's claims.
His allegations, consisting mainly of counsel's failure to
secure a CHC in the plea agreement, to bring attention to
Marin's failure to respond to three questions in the plea
questionnaire, and to seek to set aside Marin's guilty plea
after it became evident that his CHC would be II not I, are
neither based on undisputed facts nor sufficiently developed for
this court to pass judgment on counsel's performance. This
claim must be brought first before the district court via a
request for post-conviction relief.
VI. Conclusion
-20- We hold that the issues raised in Rodriguez's appeal of the
denial of his motion to suppress have been waived. Further, we
deny defendants' requests to withdraw their guilty pleas because
we conclude that they were entered into knowingly,
intelligently, and voluntarily. We also find no errors in the
court's sentencing of defendants. Finally, we dismiss Marin's
ineffective assistance of counsel claim without prejudice.
-21-