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USCA1 Opinion
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No. 96-1534
UNITED STATES OF AMERICA,
Appellee,
v.
CECILIO F. MCDONALD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
Hill,* Senior Circuit Judge,
and Boudin, Circuit Judge.
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Robert D. Dimler , by appointment of the court, for appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Sheldon Whitehouse, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief, for
appellee.
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August 20, 1997
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*Of the Eleventh Circuit, sitting by designation.
SELYA, Circuit Judge. In this proceeding, defendant-
appellant Cecilio F. McDonald asks in the alternative (1) that we
vacate his guilty plea because the district court failed to advise
him of the applicable mandatory minimum sentence during the plea
colloquy, or (2) that we set aside his sentence due to an alleged
error in the calculation of his adjusted offense level. Taking
second things first, we find no computational error. And while
McDonald's first point is well-taken _ we agree that the district
court erred in failing to apprise the appellant of the mandatory
minimum sentence, see Fed. R. Crim. P. 11(c)(1) _ we find that this
error was benign. Consequently, we affirm the appellant's
conviction and sentence.
I.
Background
On September 18, 1995, the authorities searched the
appellant's one-bedroom apartment in Providence, Rhode Island,
pursuant to a warrant. They found a cornucopia of drugs, money,
and drug-related paraphernalia hidden in the parlor: 160.32 grams
of crack cocaine, 2,656.47 grams of marijuana, $16,050 in cash,
three digital scales, and two dust masks. They also found a 9mm
semi-automatic pistol and a plastic bag containing several live
rounds in a secret compartment in the bathroom vanity.
A federal grand jury subsequently returned an indictment
charging the appellant with possessing fifty grams or more of
cocaine base (crack), intending to distribute it, in violation of
21 U.S.C. S 841(a)(1) and (b)(1)(A) (1994). In due course, the
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appellant pleaded guilty to the charge. During the plea colloquy,
the district court questioned him extensively in order to ascertain
that his guilty plea was voluntary, knowing, and intelligent. Yet
the court neglected to mention that, due to the amount of crack
involved, the offense carried a mandatory minimum ten-year
sentence.
Following standard practice, the district court
commissioned the preparation of a Presentence Investigation Report
(PSI Report). In it, the probation department reported that the
amount of crack involved called for a base offense level (BOL) of
36; recommended a series of adjustments to the BOL; hypothesized
that the appellant belonged in criminal history category III; and
forecast a guideline sentencing range of 210-262 months. In two
places, the PSI Report unambiguously declared that a mandatory
minimum sentence of ten years applied. The appellant (who told the
court at sentencing that he had been afforded an ample opportunity
to read and digest the PSI Report) filed a covey of objections, but
he neither took issue with the applicability of the mandatory
minimum sentence nor complained that its existence had previously
been withheld from him.
At the disposition hearing, the district judge determined
that the BOL was 34, not 36. He made two adjustments, subtracting
three levels for acceptance of responsibility, see USSG S3E1.1
(1995), and adding two levels for possession of a firearm, see USSG
S2D1.1(b)(1) (1995). The court then concluded that the appellant
belonged in criminal history category I. These determinations
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yielded a sentencing range of 135-168 months. See USSG Ch.5, Pt.
A (Sentencing Table) (adjusted offense level 33, criminal history
category I). The judge thereupon imposed a 135-month incarcerative
sentence. This appeal ensued.
II.
Discussion
We begin with the weapons enhancement, cognizant that the
propriety vel non of that ruling may affect the harmless error
analysis which the appellant's principal assignment of error
entails.
A.
The Weapons Enhancement
We review factual determinations made in the course of
sentencing for clear error, mindful that such determinations need
only be supported by preponderant evidence. See United States v.
Lagasse, 87 F.3d 18, 21 (1st Cir. 1996). Moreover, the district
court's application of a relevant guideline to the facts of a given
case is a fact-sensitive matter that engenders clear-error review.
See United States v. Gonzalez-Vazquez, 34 F.3d 19, 24 (1st Cir.
1994). Under these standards, we must uphold the weapons
enhancement in this case.
There is no cause to tarry. A firearm is a "dangerous
This is to be distinguished from questions anent the
interpretation or overall applicability of particular guidelines to
particular situations. Such questions are questions of law and are
therefore subject to de novo review. See United States v. Muniz,
49 F.3d 36, 41 (1st Cir. 1995).
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weapon," and the relevant guideline instructs the sentencing court
to increase the BOL by two levels if the defendant possessed "a
dangerous weapon." USSG S2D1.1(b)(1). The Sentencing Commission's
commentary and application notes weigh heavily in construing the
guidelines, see Stinson v. United States, 508 U.S. 36, 42-46
(1993); United States v. Fiore, 983 F.2d 1, 2 (1st Cir. 1992), and,
in regard to this guideline, the Commission tells us that "the
adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense." USSG S2D1.1(b)(1), comment. (n.3). We have consistently
honored this advisory, see, e.g., Gonzalez-Vazquez, 34 F.3d at 24;
United States v. Jackson, 3 F.3d 506, 509 (1st Cir. 1993); United
States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990), and the
appellant has offered us no persuasive reason to repudiate it
today.
Of course, a certain nexus between the weapon and the
offense must be shown in order for the enhancement to lie. See
Lagasse, 87 F.3d at 22. But to establish the link the prosecution
need only prove that the defendant possessed the weapon during the
currency of the offense, not necessarily that he actually used it
in perpetrating the crime or that he intended to do so. See id.
Furthermore, a defendant need not have had the weapon on his person
for the enhancement to apply; any possession _ actual or
constructive _ can trigger the two-level increase. See United
States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996). Thus, "when
the weapon's location makes it readily available to protect either
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the participants themselves during the commission of the illegal
activity or the drugs and cash involved in the drug business, there
will be sufficient evidence to connect the weapons to the offense
conduct." United States v. Corcimiglia, 967 F.2d 724, 727 (1st
Cir. 1992); accord Lagasse, 87 F.3d at 22; United States v. Ovalle-
Marquez, 36 F.3d 212, 225 (1st Cir. 1994).
Here, the government satisfied its entry-level burden.
It showed that the appellant constructively possessed a weapon _
after all, the gun was found in the bathroom vanity of the home
that he alone occupied _ and a reasonable factfinder could infer
from the apartment's contents that the premises served as the
command post for the appellant's drug-trafficking activities. In
short, the weapon, though hidden, was readily available to protect
the appellant, the cash, and the drugs that he kept on the
premises.
Where, as here, the government has shown that a firearm
possessed by the defendant was present during the commission of the
offense, the burden shifts to the defendant to persuade the
factfinder that a connection between the weapon and the crime is
clearly improbable. See Jackson, 3 F.3d at 509. On this record,
we cannot fault the lower court for holding that the appellant
failed to carry this burden. To be sure, the appellant denied all
knowledge of the gun. But he neither adduced any evidentiary
support for this denial nor suggested an innocent explanation for
the gun's presence. Credibility calls are for the trier, see,
e.g., United States v. St. Cyr , 977 F.2d 698, 706 (1st Cir. 1992),
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and Judge Pettine was not obliged to credit the appellant's
unsupported disclaimer of guilty knowledge.
To summarize, we discern no clear error in the court's
imposition of a two-level enhancement pursuant to USSG
S2D1.1(b)(1).
B.
The Rule 11 Colloquy
We turn now to the appellant's principal claim _ a claim
that makes its debut on appeal. In many instances, we will decline
to entertain issues that were not seasonably advanced in the nisi
prius court. However, a different rule sometimes obtains when a
defendant seeks for the first time to set aside his guilty plea in
the court of appeals. See, e.g., United States v. Parra-Ibanez,
936 F.2d 588, 593 (1st Cir. 1991); see generally Fed. R. Crim. P.
32(e). Here, the defendant's allegation implicates a core concern
of Rule 11 and the record on appeal is adequately developed to
permit direct review. See United States v. Martinez-Martinez, 69
F.3d 1215, 1219 (1st Cir. 1995), cert. denied, 116 S. Ct. 1343
(1996). Hence, we consider the appellant's argument.
When a defendant moves in the district court to withdraw a
guilty plea, we usually test that motion by means of a set multi-
part analysis. See United States v. Gonzalez-Vazquez, 34 F.3d 19,
22-23 (1st Cir. 1994); United States v. Parrilla-Tirado, 22 F.3d
368, 371 (1st Cir. 1994). We have on occasion used this same
analytic tool as a guide in cases in which a defendant alleges for
the first time on appeal that the district court violated Criminal
Rule 11. See, e.g., United States v. Lopez-Pineda, 55 F.3d 693,
696 (1st Cir. 1995). The multi-part test is not obligatory. Here,
where both the trial court's error and the harmlessness of that
error are manifest, we need not perform the multi-part test.
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By entering a guilty plea, a defendant effectively waives
a myriad of important constitutional rights. Thus, due process
demands that such a plea be made voluntarily, knowingly,
intelligently, and with an awareness of the overall circumstances
and probable consequences. See Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969). To this end, Rule 11 has a predominantly
prophylactic purpose. The main thrust of the rule is to ensure
that a defendant who pleads guilty does so with full comprehension
of the specific attributes of the charge and the possible
consequences of the plea. See United States v. Lopez-Pineda, 55
F.3d 693, 695 (1st Cir. 1995).
In neglecting to apprise the appellant of the mandatory
minimum sentence applicable to the offense of conviction, the
district court tarnished an otherwise irreproachable plea colloquy
and violated Rule 11. See Fed. R. Crim. P. 11(c)(1) (stating,
among other things, that "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").
It follows that the appellant's claim of error is well founded.
This determination does not end our inquiry. Not every
violation of Rule 11 invalidates a guilty plea, and the Criminal
Rules specifically instruct courts to disregard any defect in a
Rule 11 proceeding that does not affect the defendant's substantial
rights. See Fed. R. Crim. P. 11(h). In other words, even an error
implicating Rule 11's core concerns will not require vacating a
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guilty plea if the error, in context, is harmless.
In the case at hand, the error did not impair the
appellant's substantial rights. The court imposed a sentence of
135 months _ fifteen months longer than the mandatory minimum _ and
calculated that sentence without any reference to the mandatory
minimum. It is, therefore, readily apparent that because the
guideline sentencing range (at its nadir) outstripped the mandatory
minimum, the latter had no relevance to, and no actual effect upon,
the appellant's sentence. Consequently, the district court's
failure to apprise the appellant of the mandatory minimum was an
error that did no discernible harm. See Lopez-Pineda, 55 F.3d at
696; United States v. Johnson, 1 F.3d 296, 303 (5th Cir. 1993).
The appellant's fallback position is that, as a result of
the court's failure to inform him of the mandatory minimum
sentence, he was deprived of the benefit of his bargain. This
argument rests on the notion that, without the mandatory minimum,
the appellant had a chance to obtain a sentence less than 120
months; and, while this prospect induced him to change his plea,
the undisclosed mandatory minimum rendered the prospect illusory.
The short answer is that this notion does not comport
with the facts: any chance that the appellant had to obtain a
sentence of less than 120 months depended, at least in part, on
avoiding the two-level upward adjustment for possession of a
firearm. Since that enhancement was properly awarded, without any
Indeed, the existence of the mandatory minimum presented the
appellant with an opportunity, through the operation of the so-
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reference to the mandatory minimum, the court's omission could not
have affected the appellant's substantial rights.
We need go no further. The purpose of insisting that the
judge inform a defendant of the existence and potential
applicability of a mandatory minimum sentence is to ensure that the
defendant is not induced to change his plea because of a totally
unrealistic expectation as to how mild a sentence he might receive.
That purpose was not in any way frustrated by the omission that
occurred here. Since the district court's bevue did not harm or
prejudice the appellant in any cognizable way, the appeal founders.
Affirmed.
called "safety valve" provision, see 18 U.S.C. S 3553(f) (1994);
USSG S5C1.2, to obtain an appreciably lower sentence. In the final
analysis, however, the weapons enhancement blocked this avenue too.
See USSG S5C1.2(2).
We note in passing that the evidence strongly suggests that
the appellant, notwithstanding the district court's omission, knew
of the mandatory minimum sentence all along. For instance, he
confirmed at the disposition hearing that he enjoyed ample
opportunity to read the PSI Report and discuss it with his counsel
_ and that report states in two places that the offense carries a
ten-year mandatory minimum sentence. Furthermore, the possible
application of the "safety valve" provision was discussed in open
court at the change-of-plea hearing _ and that provision only comes
into play where a mandatory minimum sentence is in effect.
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Document Info
Docket Number： 96-1534
Filed Date： 8/28/1997
Precedential Status： Precedential
Modified Date： 9/21/2015