United States v. Zorrilla

Opinion

USCA1 Opinion

December 23, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 91-2249

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  RUBEN E. ZORRILLA,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF RHODE ISLAND 

                     [Hon. Francis J. Boyle, U.S. District Judge]
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                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                             and Brody,* District Judge.
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                                _____________________

               Jeffrey L. Baler for appellant.
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               Margaret E. Curran, Assistant  United States Attorney,  with
               __________________
          whom  Lincoln C. Almond,  United States Attorney,  and Kenneth P.
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          Madden,  Assistant  United States  Attorney,  were  on brief  for
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          appellee.

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          *  Of the District of Maine, sitting by designation.

TORRUELLA, Circuit  Judge.   In this  appeal, appellant
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          alleges  that the  district court  erred in  determining that  he

          entered  a guilty plea voluntarily and  knowingly, and in failing

          to establish a factual basis for the plea.  Due  to these errors,

          appellant asks us to vacate  his plea so that he may  plead anew.

          We cannot grant appellant the relief he seeks and  we thus affirm

          the actions of the district court.

                                        FACTS
                                        FACTS
                                        _____

                    In  April 1991  police  obtained a  search warrant  for

          appellant's   apartment  in   Providence,  Rhode   Island,  which

          appellant  shared with  Sophia Soto,  his girlfriend.   When  the

          police entered the  home they  found 125.68 grams  of cocaine,  a

          loaded pistol, cash, and  other items.  Appellant confessed  to a

          government agent that the firearm belonged to him.

                    Appellant  and  Soto  subsequently  were  charged  with

          conspiracy to distribute and to possess with intent to distribute

          cocaine  under  21  U.S.C.     846,  possession  with  intent  to

          distribute cocaine under 21 U.S.C.   841(a)(1) and 18 U.S.C.   2,

          and possession  of a  firearm during  and in  relation to  a drug

          trafficking charge under 18  U.S.C.   924(c)(1).  At  his initial

          appearance, appellant pled not guilty to the charges.  

                    Appellant later asked to change his plea pursuant to an

          agreement  with the  government.   Under the  agreement appellant

          would plead guilty to  each charge, and in return  the government

          would   recommend  the  minimum   sentence.    Additionally,  the

          government  would  not  call  appellant to  testify  against  co-

          defendant Soto.  

At the change of plea hearing the district court  judge

          announced  that he  would  ask appellant  a  number of  questions

          concerning the plea.   The judge also informed appellant  that if

          he  did not understand anything  he should inform  the judge.  An

          interpreter  aided appellant, who  is a citizen  of the Dominican

          Republic. 

                    The  district  court  first asked  appellant  about his

          educational background,  and appellant replied that  he completed

          one year of  high school in  the Dominican Republic.1   The judge

          also  asked  whether appellant  had  taken any  drugs  or alcohol

          within  the previous  24 hours,  and appellant  denied doing  so.

          Appellant's  counsel  then  assured  the  court  that   appellant

          understood the proceedings and was acting voluntarily.  Appellant

          also expressed satisfaction with counsel's representation.  

                    The judge  proceeded to inform appellant  of the rights

          he would waive  by pleading guilty,  and asked whether  appellant

          understood these  rights.   The judge discussed  individually the

          right to  trial by  jury, the  need for a  unanimous vote  by the

          jury, the  existence of  a  presumption of  innocence, and  other

          relevant rights.   Appellant affirmed that he  understood each of

          these rights and his assent to waive them.  

                    Appellant then  stated that  he understood  the charges

          against him, but  that he wanted the judge  to review the maximun

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          1   In spite of  this answer,  a dispute  exists as  to how  much
          education appellant has completed.  The presentence report states
          that appellant completed some  college education in the Dominican
          Republic.

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sentences.   The  district court judge  thus recited  the maximum

          allowable sentence on each count,  asking after his recitation on

          each  count  "Do  you  understand  that?"    Appellant  responded

          affirmatively as to each count.  

                    The district  court judge then  asked appellant  "Would

          you tell me in your own  words what you understand the charges to

          be?   Do you know what the  charges are?"  In response, appellant

          summarized each of  the three  charges.  The  judge himself  then

          summarized  each  charge,  again   asking  appellant  whether  he

          understood each  charge.  The judge also  determined that counsel

          explained to  appellant that the  plea agreement was  not binding

          upon the court,  and that appellant could not  revoke his plea if

          the court imposed a  higher sentence than the minimum.  The judge

          once again summarized the charges, and at this point accepted the

          guilty plea.

                    Thereafter a probation  officer prepared a  presentence

          report containing a statement  signed by appellant describing the

          crimes and an  offense level recommendation.   The district court

          judge  sentenced appellant  in  accordance with  the government's

          recommendations.  The judge  imposed the minimum sentence allowed

          for appellant's  offense level, and ordered  that upon completion

          of the  prison term  appellant would  participate in a  substance

          abuse  program,  pay  the  costs of  supervised  release,  and be

          surrendered to the Immigration and Naturalization Service. 

                                    LEGAL ANALYSIS
                                    LEGAL ANALYSIS
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                    Appellant  alleges two  errors  by the  district court.

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Appellant first contends that the district court failed to ensure

          that appellant understood the nature of the charge underlying his

          plea,  in violation  of Fed.  R. Crim.  P. 11(c)(1).2   Appellant

          next contends that the district court judge failed to establish a

          factual basis for the guilty plea  at the change of plea hearing,

          in  violation of  Fed. R.  Crim. P.  11(f) and  11(g).3   On this

          basis,  appellant urges  us to vacate  his plea and  allow him to

          plead again. As  to  appellant's  first argument,  we  note  that

          "[t]here is no talismanic test" for ensuring compliance with this

          rule.   United States  v. Allard, 926  F.2d 1237, 1245  (1st Cir.
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          1991).    We  must look  at  the  circumstances  of  the case  to

          determine whether  the district  court informed the  defendant of

          the charges,  and determined that the  defendant understood them.

          Id. at 1244.  
          ___

                    In  this case,  we are  struck with the  district court

          judge's thorough explanation of the charges and searching inquiry

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          2  This rule states that  "[b]efore accepting a plea of guilty or
          nolo contendere, the court must address the defendant  personally
          in open court and inform the defendant of, and determine that the
          defendant understands,  the following:   (1)  the  nature of  the
          charge to which the plea is offered  . . .  ."  Fed. R.  Crim. P.
          11(c)(1).

          3   Rule 11(f) states that "[n]otwithstanding the acceptance of a
          plea of guilty, the  court should not enter a judgment  upon such
          plea without making such  inquiry as shall satisfy it  that there
          is a factual basis for the plea."  Fed. R. Crim. P. 11(f).

             Rule 11(g) states that  a "verbatim record of the  proceedings
          at which the  defendant enters  a plea shall  be made"  including
          "the  court's  advice  to the  defendant,  the  inquiry into  the
          voluntariness  of the plea including any  plea agreement, and the
          inquiry into  the accuracy of a  guilty plea."  Fed.  R. Crim. P.
          11(g).  

                                         -5-

into appellant's  understanding of them.   Indeed, appellant knew

          to ask  the judge about an area which confused him -- the maximum

          sentences which could be imposed on him.   When the judge recited

          the maximum  sentences,  appellant indicated  that he  understood

          them.  Given the district court judge's repeated summaries of the

          charges and  efforts to ensure appellant's  full understanding of

          them,  we  cannot say  that the  district  court judge  failed to

          comply with the requirements of Rule 11(c)(1) in determining that

          appellant   understood  the   charges.     We  therefore   reject

          appellant's first argument.

                    As  to  appellant's  second  argument,  the  government

          concedes that  the district court  failed to establish  a factual

          basis for the guilty  plea at the hearing, and we acknowledge the

          district  court's failure in this  regard.    Nonetheless, we are

          not  convinced that this error gives appellant the right to plead

          anew.     Rule  11(h) states  in unmistakable  terms that  "[a]ny

          variance from the procedures required by this rule which does not

          affect substantial rights  shall be disregarded."   Fed. R. Crim.

          P. 11(h).   Thus, absent a showing of prejudice  to appellant, we

          cannot grant relief.   As we stated in Allard,  "[m]ere technical
                                                 ______

          violations . .  . do not warrant setting aside  a plea."  Allard,
                                                                    ______

          926 F.2d at 1244.   Appellant has failed to  allege any prejudice

          flowing  from this  error, and  we can  find none.   The  lack of

          prejudice is fatal to appellant's claim.  

                    In  support  of  our  conclusion that  the  failure  to

          establish  a factual basis  did not prejudice  appellant, we note

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that  a  sufficient factual  basis for  the  plea existed  in the

          record.  See United  States v. Adams, 961  F.2d 505, 512-13  (5th
                   ___ ______________    _____

          Cir. 1992) (information from  presentence report and plea hearing

          used  to establish factual basis when district court failed to do

          so  at change  of plea  hearing).   Information derived  from the

          presentence  report  and  probable  cause  hearing  reveals  that

          appellant's conduct satisfied the elements of the crimes charged.

          This information  includes appellant's own signed  confession and

          evidence  presented   at  the  probable  cause   hearing  linking

          appellant to the cocaine and firearm.  

                    As  appellant has suffered  no concrete prejudice other

          than  entering a  plea he  now  regrets, we  cannot set  his plea

          aside. 

                    Affirmed.
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