March 1, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2112
ANTHONY SIMON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge, and
Stahl, Circuit Judge.
Anthony Simon on brief pro se.
Donald K. Stern, United States Attorney, and Joseph M. Walker,
III, Assistant United States Attorney, on brief for appellee.
Per Curiam. Petitioner Anthony Simon appeals the denial
by the United States District Court for the District of
Massachusetts of his motion to vacate, set aside or correct
his sentence, pursuant to 28 U.S.C. 2255. We have read
carefully the record in this case and the briefs of the
parties. We affirm the decision of the district court
essentially for the reasons given in its memorandum and order
dated August 25, 1993. We add only the following.
Simon claims that the record of his change of plea
hearing indicates that the district court violated Fed. R.
Crim. P. 11(c)(1) because it failed to establish that Simon
entered his guilty plea with an understanding of the "nature
of the charge[s] to which the plea [was] entered." Id. He
also claims that the court failed to make a sufficient
inquiry to "satisfy it[self] that there is a factual basis
for the plea." Fed. R. Civ. P. 11(f).
A failure to ascertain that Simon understood the charge
to which he was pleading guilty would constitute a "core
violation" of Rule 11 and mandate that the plea be set aside.
United States v. Cotal-Crespo, No. 94-1354, slip op. at 7
(1st Cir. Jan. 30, 1995). "[W]e review the totality of the
circumstances surrounding the Rule 11 hearing" and, in
particular, "the substance of what was communicated by the
trial court, and what should reasonably have been understood
by the defendant, rather than the form of the communication."
Id.
Simon pled guilty to one count of possession of more
than one hundred grams of heroin in violation of 21 U.S.C.
841(a)(1) and one count of engaging in a continuing criminal
enterprise in violation of 21 U.S.C. 848. Although the
court asked Simon whether he understood the nature of the
charges to which he was pleading guilty, and Simon responded
in the affirmative, the court neither read the charges to
Simon nor explained to him the specific elements of either
count. However, the prosecutor's statement of the evidence
which would have been offered at trial clearly described
facts which set forth all the elements of each offense to
which Simon pled guilty and the conduct by Simon which
constituted each offense. Simon admitted to having
"participated in the offenses charged [in the two counts to
which he pled guilty] in the ways indicated in that summary
of the evidence." Since no "exceptional circumstances"
exist which indicate otherwise, see, e.g., United States v.
Ruiz-Del Valle, 8 F.3d 98, 103-04 (1st Cir. 1993) (finding
change of plea hearing defective because charge was neither
read nor explained and defendant during plea hearing made
statement which should have put court on notice she did not
understand charge), the prosector's statement is sufficient
evidence that Simon understood the charges to which he
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entered a plea. Cotal-Crespo, slip op. at 10. It is also a
sufficient for finding that there was a factual basis for the
plea. See United States v. Fountain, 777 F.2d 351, 355 (7th
Cir. 1985), cert. denied, 475 U.S. 1029 (1986).
Affirmed.
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