United States v. Marquez-Hernandez , 39 F. App'x 617 ( 2002 )

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1769
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN MARQUEZ-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Anita Hill Adames on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco
and Nelson Pérez-Sosa, Assistant United States Attorneys, on
brief for appellee
March 15, 2002
Per Curiam. On December 30, 1998, a federal grand jury
in the District of Puerto Rico handed up a second superseding
indictment against twenty persons, including defendant-appellant
Juan Márquez-Hernández. The grand jury accused these defendants
of committing sundry drug-related crimes. Márquez-Hernández was
named only in the first two counts. Count 1 charged that the
appellant and others unlawfully conspired to possess with intent
to distribute multi-kilogram quantities of cocaine in violation
of 21 U.S.C. § 846. Count 2 charged the appellant with
violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 by
participating in the underlying offense — the smuggle of 689
kilograms of cocaine into Puerto Rico — on May 29, 1998.1
The charging papers described several overt acts that
allegedly occurred in furtherance of the drug-trafficking
conspiracy. Pertinently, this descriptive material related that
one of the organizers of the scheme, Juan Carlos Pion, wanted a
satellite telephone to assist the ring in smuggling a huge load
of cocaine (containing roughly 689 kilograms) into Puerto Rico;
that on May 13, 1998, a coconspirator, José Antonio Casillas,
delivered more that $7,000 to fund the purchase of the device;
and that four days later, at St. Marteen, the appellant
1
The district court ultimately dismissed count 2, and it has
no bearing on this appeal.
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participated in the acquisition of a Nera satellite telephone,
bought with the funds provided by Casillas, and learned how to
operate it.
The appellant initially pled not guilty to both counts.
On January 18, 2000, however, he entered a guilty plea to count
1 pursuant to a non-binding plea agreement. See Fed. R. Crim.
P 11(e)(1)(A). The plea agreement contained several concessions
favorable to the appellant. Among other things, the government
agreed that it would not seek to hold him accountable for more
than five kilograms of cocaine; that it would recommend not only
a full three-level downward adjustment for acceptance of
responsibility, see USSG § 3E1.1, but also a sentence at the low
end of the applicable guideline range; and that it would invite
the district court to dismiss count 2 of the indictment insofar
as that count pertained to the appellant.
The district court conducted a Rule 11 hearing and
permitted the appellant to change his plea. The court continued
the matter several months for sentencing. The appellant and
his counsel received the presentence investigation report (PSI
Report) a full month before sentencing, and unreservedly
acquiesced in it. At the disposition hearing, the court imposed
a seventy-month incarcerative term and dismissed count 2 of the
indictment. This appeal followed.
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In this venue, Márquez-Hernández raises only a single
issue. He concedes that, in general, the district court
conducted the change-of-plea proceeding in conformity with the
requirements of Fed. R. Crim. P. 11, but he claims that the
court did not make an adequate inquiry into whether there was a
factual basis sufficient to sustain his guilty plea. Because
the appellant advances this argument for the first time on
appeal — in the court below, he neither questioned the factual
predicate for his guilty plea nor sought to withdraw that plea
— our review is for plain error. See United States v. Valdez-
Santana, 279 F.3d 143, ___ (1st Cir. 2002) [No. 00-2138, slip
op. at 6]; United States v. Perez-Carrera, 243 F.3d 42, 44 (1st
Cir. 2001); United States v. Gandía-Maysonet, 227 F.3d 1, 5 (1st
Cir. 2000). The plain error standard requires an appellant to
show four things: "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001) (citing, inter alia, Johnson v. United States, 520
U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725,
732 (1993)). In the plea-withdrawal context, a defendant,
facing plain-error review, must, inter alia, carry the burden of
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showing not only that an error transpired, but also "that the
outcome would likely have been different if the error had not
occurred." United States v. Hoyle, 237 F.3d 1, 5 (1st Cir.
2001). The appellant cannot carry that heavy burden here.
It is, of course, a bedrock rule, memorialized in Fed.
R. Crim. P. 11(f), that the district court must not enter
judgment upon a guilty plea unless and until it is satisfied
that the plea rests upon an adequate factual foundation.
However, the factual foundation required by the rule need not be
exquisitely detailed or precise to the point of pedantry. See,
e.g., United States v. Martinez-Martinez, 69 F.3d 1215, 1220
(1st Cir. 1995). In this instance, the sentencing court,
although not meticulous in its efforts, appears to have done
enough.
First, the court read the conspiracy charge to the
appellant and took steps to ensure that he understood it. The
appellant thereupon admitted that he had committed the charged
crime. Second, the plea agreement, introduced as an exhibit at
the change-of-plea hearing, contained the government's version
of what the appellant had done to assist in the preparations for
the smuggle (i.e., the procurement of the satellite telephone).
The appellant verified that account at the hearing. The
district court also requested that the prosecutor orally
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summarize the government's evidence against the appellant. She,
too, described the appellant's participation in the purchase of
the satellite telephone and linked that device to the planned
smuggle. The appellant acknowledged the accuracy of this
narrative. Against that backdrop, the admitted facts — that the
appellant participated in the acquisition of the satellite
telephone and joined several coconspirators in learning how to
use it — were highly incriminating, leading the court to make an
explicit finding, at the close of the change-of-plea
proceedings, that "there is a basis in fact for the plea."
To be sure, the district court's questioning could have
been more pointed, and some of the appellant's answers may be
susceptible of two interpretations — one innocent and one not.
But the district court was the proper venue in which to clarify
the matter, and in the absence of any contemporaneous objection,
any error that may have occurred certainly was not "plain."
In all events, Rule 11(f)'s requirement — that the
trial court be satisfied that a guilty plea has a basis in fact
— is designed to "protect a defendant who is in the position of
pleading voluntarily with an understanding of the nature of the
charge but without realizing that his conduct does not actually
fall within the charge." McCarthy v. United States, 394 U.S.
459, 467 (1969). Bearing in mind that a defendant's agreement
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to join in a conspiracy and his actions in furtherance of it
often hinge on circumstantial, rather than direct, evidence,
e.g., United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.
1993); United States v. Gómez-Pabón, 911 F.2d 847, 853 (1st Cir.
1990), the record in this case, taken as a whole, adequately
evinces the appellant's understanding of the nature of the
charge and how his conduct fit within it.2
We need go no further. Under the totality of the
circumstances, we can detect no plain error in the Rule 11
proceedings. Moreover, there is no reason, on this record, to
suspect that justice has miscarried. Consequently, we uphold
the trial court's acceptance of the appellant's guilty plea and
reject the assignment of error.
Affirmed.
2We note, too, that nothing in the circumstances of this
case indicates that the appellant's plea plausibly could be
characterized as involuntary. The appellant had the benefit of
seasoned counsel; originally pleaded not guilty and maintained
that stance for approximately one year (until he negotiated a
favorable plea agreement); acknowledged that he understood the
nature of the charge; and tendered no objection to the PSI
Report (which contained, inter alia, the government's version of
the offense and of his role in it).
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