[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 97-1176
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL CABRERA-ROSARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Juan P. Rivera Rom n on brief for appellant.
Guillermo Gil, United States Attorney, Jos A. Quiles-
Espinosa, Senior Litigation Counsel, and Aixa Maldonado-Qui ones,
Assistant United States Attorney, on brief for appellee.
October 17, 1997
SELYA, Circuit Judge. Defendant-appellant Manuel
SELYA, Circuit Judge.
Cabrera-Rosario (Cabrera) invites us to vacate his sentence and
set aside his guilty plea. For the reasons elucidated below, we
decline the invitation.
I. BACKGROUND
I. BACKGROUND
A grand jury sitting in the District of Puerto Rico
returned a two-count indictment against the appellant. Count 1
charged that Cabrera, a convicted felon, knowingly received
and/or possessed a number of firearms that had been transported
in commerce in violation of 18 U.S.C. 922(g) and 924(e)
(1994). Count 2 charged him with obliterating the manufacturer's
serial numbers on two of these weapons both Cobray machine guns
in violation of 18 U.S.C. 922(k) & (o) (1994).
The appellant originally pleaded not guilty. On May
28, 1996, he changed course and signed a so-called Plea and
Cooperation Agreement (the Agreement) that set forth the terms
and conditions appertaining to a nonbinding plea bargain. See
Fed. R. Crim. P. 11(e)(1)(B).
The Agreement each page of which was initialled by
the appellant and his attorney provided, inter alia, that if
Cabrera cooperated fully and truthfully, the government would
stipulate to a particular set of guideline calculations designed
to yield a guideline sentencing range (GSR) of 188 to 235 months
(adjusted offense level 31; criminal history category VI). It
clearly indicated Cabrera's awareness that, notwithstanding the
stipulation, "the defendant's sentence is within the sound
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discretion of the sentencing judge," Agreement, 6; and that, if
the court were to impose a sentence in excess of 235 months, "the
defendant [could] not, for that reason alone, withdraw [his]
guilty plea," id. The Agreement also implied that the
government, unless it moved for a downward departure, see USSG
5K1.1 (1995) a matter left wholly within its discretion
would recommend that the court impose a sentence within those
parameters.
Cabrera thereupon completed a 13-page Petition to Enter
a Plea of Guilty (the Petition) that reinforced the sentencing
message contained in the Agreement. The Petition included an
extensive questionnaire. In addition to answering the questions,
Cabrera initialled each of the 13 pages, as did his attorney.
A change-of-plea hearing ensued. Judge Casellas told
the appellant the purpose of the proceeding and interrogated him
at some length. The appellant stated unequivocally, in response
to direct questions, that he had read and completed truthfully
all 13 pages; that he had conferred sufficiently with his
counsel; and that he understood that his guilty plea, if
accepted, would effectively waive a long list of constitutional
rights. Judge Casellas then requested the prosecutor to
summarize the terms of the Agreement.1 The court made it crystal
1The prosecutor's summary was accurate for the most part,
but he misstated the projected GSR, describing it as 188 to 208
months. Given the express provisions of both the Agreement and
the Petition, and the fact that the appellant and his lawyer
vouchsafed the prosecutor's summary of the Agreement, we attach
no decretory significance to this lapsus linguae. We note,
moreover, that the presentence investigation report, which both
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clear that the sentence to be imposed was within its sole
discretion, subject only to the limits set by law, and the
appellant acknowledged that he understood as much.
Judge Casellas then reviewed the allegations of count 1
with the appellant and informed him of the maximum possible
penalty. However, the judge failed to mention that the appellant
could not withdraw his guilty plea if the court decided not to
follow the sentencing recommendation contained in the Agreement.
The district court convened the disposition hearing on
December 3, 1996. At the outset, the appellant's counsel
confirmed that both he and his client had read and reviewed the
presentence investigation report, that the report was "accurate"
and "fair-minded," and that they had no objection to its
contents. In his allocution, the appellant importuned the
court's forgiveness. For its part, the government did little
more than stand by the Agreement and the sentencing calculations
contained therein.
In pronouncing sentence, Judge Casellas in effect
accepted the parties' earlier stipulation, determining that the
applicable GSR was 188 to 235 months. He sentenced the appellant
at the apex of the range, but within it. This appeal ensued.
II. ANALYSIS
II. ANALYSIS
The appellant's central thesis is that his guilty plea
was involuntary because he was unaware of its consequences. He
the appellant and his attorney read and pronounced "accurate" in
advance of sentencing, tracked the Agreement and the Petition in
describing the GSR as 188 to 235 months.
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supports this thesis in two ways. First, he claims that the
presiding judge failed to warn him that he could not withdraw his
guilty plea if the judge decided not to adopt the government's
sentencing recommendation. Second, he asseverates that the
government breached the Agreement. We turn first to the question
of appealability and then consider the appellant's arguments.
A. Appealability.
A. Appealability.
Rule 11 exists as a means of safeguarding the fairness,
integrity, and public reputation of judicial proceedings. See
United States v. Parra-Ibanez, 936 F.2d 588, 593 (1st Cir. 1991).
Among other things, the rule is intended to ensure that a
defendant who pleads guilty does so with an "understanding of the
nature of the charge and the consequences of his plea." McCarthy
v. United States, 394 U.S. 459, 467 (1969). Because of the
importance of the interests that Rule 11 protects, we sometimes
will entertain on direct appeal a Rule 11 challenge even though
the essence of the challenge was not raised in the nisi prius
court. See, e.g., United States v. McDonald, 121 F.3d 7, 10 (1st
Cir. 1997); Parra-Ibanez, 936 F.2d at 593. This is such a case.
B. The Plea Colloquy.
B. The Plea Colloquy.
Fed. R. Crim. P. 11(e)(2) specifically provides, with
respect to nonbinding plea agreements,2 that "the court shall
2The plea agreement at issue here is of this stripe, drawing
its essence from Fed. R. Crim. P. 11(e)(1)(B). In it, the
prosecutor effectively agreed to take a position vis- -vis
sentencing (i.e., not opposing a sentence within the stipulated
GSR), with the understanding that this "recommendation" would not
bind the court.
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advise the defendant that if the court does not accept the
[sentencing] recommendation or request the defendant nevertheless
has no right to withdraw the plea." In this instance, the
district judge conducted a painstaking Rule 11 colloquy in which
he inquired about the Agreement and reminded the appellant that
the government's sentencing recommendation was not binding on the
court. There was, however, a flaw: the judge never told the
appellant explicitly that he would be unable to withdraw his plea
should the court fail to act in accordance with the agreed
disposition.
Notwithstanding the importance of the prophylaxis that
Rule 11 prescribes, the detection of an error does not
necessarily require vacation of a defendant's plea. The drafters
of Rule 11 made it pellucid that "any variance from the
procedures required by this rule which does not affect
substantial rights shall be disregarded." Fed. R. Crim. P.
11(h). Under this proviso, "even an error implicating Rule 11's
core concerns will not require vacating a guilty plea if the
error, in context, is harmless." McDonald, 121 F.3d at 11.
Thus, the question before us reduces to the harmlessness vel non
of the judge's omission.3
3When a defendant moves in the district court to withdraw an
earlier guilty plea, we customarily test the district court's
resolution of that motion through a multi-faceted format. 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 occasionally have utilized this same method of
analysis in cases in which a defendant alleges for the first time
on appeal that the sentencing court violated Rule 11. See, e.g.,
United States v. Lopez-Pineda, 55 F.3d 693, 696 (1st Cir.), cert.
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To be sure, due process demands that a plea in a
criminal case "be made voluntarily, knowingly, intelligently, and
with an awareness of the overall circumstances and probable
consequences." Id. (citing Boykin v. Alabama, 395 U.S. 238, 243
n.5 (1969)). In failing to apprise the appellant of one of the
consequences that would flow from the court's disapproval of the
prosecutor's sentencing recommendation, the district court
blemished an otherwise impeccable plea colloquy, violated Rule
11, and precipitated a due process challenge. Nonetheless, in
the idiosyncratic circumstances of this case, the court's error
did not impair the appellant's substantial rights. We explain
briefly.
In evaluating incipient Rule 11 violations, courts
should focus on the reality of events as reflected by the record
and take care not to elevate form over substance. See United
States v. Noriega-Mill n, 110 F.3d 162, 167 (1st Cir. 1997). For
purposes of this appeal, the pivotal datum is that the court did
not abandon the prosecutor's recommendation, but, rather, imposed
a sentence of 235 months. This sentence fell at the apex of, but
within, the agreed sentencing range. The omitted warning would
have served to inform the appellant of the consequences of his
plea should the court impose a sentence outside the agreed range;
that warning would not have added to the appellant's store of
denied, 116 S. Ct. 259 (1995). The multi-part test is a
diagnostic aid, not an obligatory ritual. See McDonald, 121 F.3d
at 10 n.2. Here, both the trial court's error and the
harmlessness of that error are manifest; consequently, there is
no need to resort to the multi-part test.
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knowledge if the court imposed a sentence within the GSR. The
sentence actually imposed fell in the latter category, not the
former. It follows inexorably that, since the contingency of
which the court failed to apprise the appellant never arose, the
court's error was benign. See, e.g., McDonald, 121 F.3d at 11;
United States v. Chan, 97 F.3d 1582, 1584 (9th Cir. 1996).
This conclusion is especially compelling on the facts
before us. The record offers every indication that, despite the
court's lapse, the appellant had actual knowledge of the omitted
fact. Indeed, he acknowledged as much in the Agreement, the
Petition, and the questionnaire that accompanied the Petition.
Since there is no reasonable likelihood that the court's omission
affected the appellant's willingness to plead guilty, a finding
of harmlessness is appropriate. See, e.g., Chan, 97 F.3d at
1584; United States v. McCarthy, 97 F.3d 1562, 1575-76 (8th Cir.
1996); United States v. Martinez-Martinez, 69 F.3d 1215, 1223-24
(1st Cir. 1995).
C. The Plea Agreement.
C. The Plea Agreement.
In his remaining argument, the appellant asserts that
the government should have done more to highlight his
cooperation. He also asserts that the government, in exchange
for his guilty plea, agreed to drop count 2 of the indictment,
yet failed to mention that count to the judge at the disposition
hearing. These assertions are not persuasive.
Passing the very real question of whether the
appellant's assertions are procedurally defaulted a claim that
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a prosecutor breached a plea agreement ordinarily must make its
debut in the district court, see United States v. Clark, 55 F.3d
9, 11 (1st Cir. 1995); United States v. Giorgi, 840 F.2d 1022,
1028 (1st Cir. 1988), and the assertions in question are raised
for the first time in this venue it is plain that the Agreement
did not require the United States to dwell in detail before the
district court regarding the extent of the appellant's
cooperation. Without an explicit commitment to that effect in
the agreement itself, there is no breach. See, e.g., United
States v. Guzman, 85 F.3d 823, 829 (1st Cir. 1996); United States
v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988). This is especially
true where, as here, the Agreement contains an integration clause
that expressly disavows commitments not set forth in the
Agreement's text.4
Insofar as count 2 is concerned, the short answer is
that the district court docket shows that the prosecutor filed a
written motion to dismiss that count on the day of sentencing and
the court granted the motion. That ends the matter: despite the
fact that the prosecutor did not mention count 2 during his oral
presentation at the disposition hearing, the count is no longer
4Paragraph 23 of the Agreement reads as follows:
This written agreement constitutes the
complete Plea Agreement between the United
States, the defendant, and the defendant's
counsel. The United States has made no
promises or representations except as set
forth in writing in this plea agreement and
deny [sic] the existence of any other term
and conditions not stated herein.
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zoetic and, therefore, the appellant received the full benefit of
his bargain.
III. CONCLUSION
III. CONCLUSION
We need go no further. The purpose of insisting that
the judge inform a defendant that he will not have the right to
withdraw his guilty plea if the court eschews the prosecutor's
sentencing recommendation is to ensure that the defendant is not
induced to change his plea without being aware of a relevant
contingency. That purpose was not in any way frustrated by the
omission that occurred here since the contingency never
materialized. Thus, because the district court's bevue did not
harm or prejudice the appellant, and because the government
abided by its Agreement, the appeal implodes.
Affirmed.
Affirmed.
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