United States v. Hoyle

United States Court of Appeals
For the First Circuit

No. 99-1971
UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN M. HOYLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Peter F. Kuntz for appellant.

Todd E. Newhouse, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.

January 8, 2001
 BOWNES, Senior Circuit Judge. In this appeal, the

defendant-appellant, Brian Hoyle, attempts to reverse the

judgment of conviction that followed his guilty plea. He

further argues that if the conviction is affirmed, his case

should be remanded for resentencing with new counsel.

Determining that the district court did not err when it accepted

the defendant's guilty plea and that the defendant was not the

victim of ineffective assistance of counsel during sentencing,

we affirm the district court.

I.

We recount the facts as set forth in the Pre-Sentence

Report (PSR). This rehearsal of the facts does not, of course,

cover the facts that are applicable only to other defendants.

On April 21, 1995, a grand jury returned an eight-count

indictment charging Rex W. Cunningham, Jr., Brian Hoyle and

Thomas Ferris. Cunningham was charged in all eight counts of

the indictment. Ferris and Hoyle were only charged in count

seven.

Cunningham is an associate of the Genovese Crime Family

and was involved in loansharking, racketeering, operating an

illegal gambling business and unlawful debt collection. Ferris

is a licensed electrician and a longtime friend of Cunningham.

He was well-aware of Cunningham's reputation as a loanshark

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collector who used threats and violence to collect usurious

loans and gambling debts. In June of 1992, Ferris asked

Cunningham to send his loanshark collectors to visit several

individuals who had contracted for his services, but had not

paid in full. Each customer had been charged an exorbitant

amount for the work performed and disputed the amount owed.

Ferris responded by getting Cunningham involved to collect the

full amount, to which Cunningham added twenty-five percent for

his collection efforts.

On June 11, 1992, the government intercepted a

conversation between Cunningham and Hoyle in which they

discussed the list of Ferris's customers and the extortionate

means to be used in order to get the customers to pay. The PSR

recounts, from testimony given at Ferris's trial, the details of

the dealings between Ferris and his customers and the subsequent

collection efforts.

Hoyle was only charged with count seven of the

indictment: conspiring to use extortionate means to collect

extensions of credit in violation of 18 U.S.C. § 894. Count

seven charges that from June of 1992, until November of 1992,

Cunningham, Hoyle and Ferris conspired with each other and

others to participate in the use of extortionate means to

collect and attempt to collect extensions of credit.

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 On January 28, 1998, the defendant entered into a plea

agreement with the government under Federal Rule of Criminal

Procedure 11(e)(1)(C). Pursuant to the agreement, the defendant

expected a sentence of 48 months in prison. At the Rule 11

hearing, the district court asked the defendant a series of

questions before accepting his guilty plea:

THE COURT: Have you told your lawyer the
whole story without concealing any facts
from him?

THE DEFENDANT: Yes, I have.

* * * *

THE COURT: Has your attorney advised you
about the nature of the charge against you,
and any possible defense you may have?

THE DEFENDANT: Yes, he has.

* * * *

THE COURT: Is your plea of guilty entirely
free and voluntary?

THE DEFENDANT: Yes, it is.

Afer reading count seven of the indictment in its entirety, the

court asked:

THE COURT: . . . Are you pleading guilty
because you did, in fact, do the acts
charged in Count 7 of the Indictment?

THE DEFENDANT: Yes, I am.

THE COURT: Do you know of any reason why
the court should not accept your plea of
guilty?

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 THE DEFENDANT: No, sir.

* * * *

THE COURT: Do you feel that you have had
sufficient time to discuss this matter fully
with your attorney before entering your plea
of guilty today?

THE DEFENDANT: Yes, sir.

* * * *

The court then entered into a dialogue along similar lines with

the defendant's attorney. Thereafter, the government recited

the factual basis for the plea.

After discussion between the attorneys, the defendant

and the court, the court accepted the defendant's plea of

guilty:

THE CLERK: How do you plead to Count 7 of
the Indictment, guilty or not guilty?

THE DEFENDANT: Guilty.

THE CLERK: You may be seated.

THE COURT: The court having questioned the
defendant Brian Hoyle and his counsel in his
offer of a plea of guilty, the defendant and
his counsel having advised the court they
have conferred concerning the offer of the
plea of guilty and all aspects of the
charges against the defendant, and any
defenses he may have, and the court having
observed the defendant in making his
answers, and his demeanor and manner, his
intelligence and attitude, and the court
having observed the defendant does not
appear to be under the influence of any
medicine, drugs or other substance that may

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 affect his judgment in any matter; the court
finds that the offer of a plea of guilty of
the defendant to Count 7 of the Indictment
has a factual basis, is free of any coercive
influence of any kind, is voluntarily made
with full knowledge of the charge against
him and the consequences of his plea, and
there have been no promises of any kind made
by anyone, and no threats or coercion have
been exerted upon the defendant in any
manner.

* * * *

It is therefore ordered the plea of
the defendant Brian Hoyle to Count 7 of the
Indictment be accepted and entered.

Thereafter, the probation department learned of a prior

conviction for possession of marijuana with intent to

distribute. Based on that new fact, the defendant would be

classified as a career criminal and would receive a sentence of

substantially longer than the agreed-upon 48 months. Therefore,

the defendant withdrew his January 28 guilty plea.

On May 1, 1998, the defendant pled guilty a second

time. The colloquy was much the same as it was on January 28,

and the government again laid out the factual basis for the plea

agreement:

Had this case gone to trial against
the defendant, Your Honor, the United States
would have introduced evidence including
witness testimony, electronic surveillance,
tapes, as well as records from various
businesses.

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 In essence, Judge, the trial would
have boiled down to a tape [that] would be
played in which a conversation on June 9,
1992 which occurred inside Dillon's Tavern
between Rex Cunningham and Thomas Ferris.

Thomas Ferris asked Mr. Cunningham to
have individuals collect by use of an
extortionate means, that being fear,
threats, intimidation and unnatural
violence.

Mr. Ferris wanted money collected from
four individuals that had contracted with
him in Mr. Ferris' electrical contracting
business.

Mr. Ferris and Mr. Cunningham
discussed the names of the individuals,
their addresses, and how best to contact
them. There was discussion with regards to
how each of the individuals should be
contacted, and what means, extortionate
means should be used to force the
individuals to collect.

Two days later also occurring in
Dillon's Tavern on June 11, 1992, the
defendant before you today, Brian Hoyle, was
intercepted in a conversation with Rex W.
Cunningham, Jr. in which Mr. Cunningham
discussed the four individuals that two days
earlier Mr. Ferris had requested Mr.
Cunningham to use his expertise in
collecting from. During that conversation
Mr. Cunningham and Mr. Hoyle discussed
exactly what types of extortionate means
would be used to collect from those four
individuals.

There was a third conversation on July
21, 1992 in which Mr. Ferris again came into
Dillon's and asked Mr. Cunningham what was
going on with the collection efforts, and
Mr. Ferris hadn't gotten any money yet. And
Mr. Cunningham said he was going to talk to

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 Brian Hoyle about it, and get him on it
right away.

Each of the individuals listed in the
Indictment would testify they were either
called or visited on one occasion by
individuals saying that the named victim in
the indictment had to pay the person they
owed the money to and specific amounts were
mentioned, although Mr. Ferris' name was not
mentioned. One of the victims, Diane
Taylor, would identify an individual who
looked like the defendant Brian Hoyle and he
and another individual got into a car
registered to Brian Hoyle.

In addition a search warrant was
executed of Mr. Cunningham's person, his
home, and his vehicle, and in his vehicle
were found three index cards which had the
names of the four individuals who Mr. Ferris
sought to have collected from, including
their addresses and their home phone
numbers.

* * * *

. . . That would be the evidence in
sum that the government would have relied
upon had it gone to trial.

This time, the government asked for a sentence at the

“low end of the guideline range.” The defendant pled guilty to

count seven of the Indictment for the second time and the court,

again, accepted his plea after questioning the defendant as he

had done at the prior plea of guilty. See supra. The defendant

was ultimately sentenced to 151 months in prison and three years

of supervised release.

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 The defendant did not file a notice of appeal. He

instead filed a pro se motion pursuant to 28 U.S.C. § 2255. The

district court granted the motion for the sole purpose of

appealing his sentence and directed the clerk to file a notice

of appeal on the defendant's behalf.

On appeal, the defendant argues that the district court

violated Rule 11(f) of the Federal Rules of Criminal Procedure

by entering judgment upon the defendant's plea of guilty without

a proffer of evidence that the defendant had participated or

conspired to collect or attempt to collect on an “extension of

credit.” The defendant argues that he was not adequately

informed by the court of the nature of the charge to which he

was pleading guilty as required by Rule 11(c). He further

contends that the sentencing guidelines were erroneously

applied. We will address each of these points in turn.

II.

We first address the defendant's contention that the

district court violated Rule 11(f)1 because the factual basis for

the guilty plea was insufficient. The defendant did not

challenge his guilty plea in his criminal case and did not do so

1 Rule 11(f) states: “Determining Accuracy of Plea.
Notwithstanding 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.”

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in his § 2255 petition. Because he raises this Rule 11(f) claim

for the first time on appeal, we review it only for plain error.

United States v. Gandia-Maysonet, 227 F.3d 1, 4 (1st Cir. 2000).

Under a plain error standard, the burden is on the defendant who

is attacking his own plea to show that the outcome would likely

have been different if the error had not occurred. Plain error

“requires not only an error affecting substantial rights but

also a finding by the reviewing court that the error has

'seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.'” Id. at 5 (alteration in

original) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).

We have held that:

[t]he “fairness, integrity or reputation”
plain-error standard is a flexible one and
depends significantly on the nature of the
error, its context, and the facts of the
case. In the taking of a guilty plea under
Rule 11, the critical concerns are that the
plea be voluntary and that there be an
admission, colloquy, proffer, or some other
basis for thinking that the defendant is at
least arguably guilty.

Gandia-Maysonet, 227 F.3d at 6 (internal citations omitted).

The defendant argues that “the government proffered no

evidence that [the] debt the defendant attempted to collect

arose from an 'extension of credit.'” He contends that the

money the customers owed to Ferris for his electrical

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contracting work was not an “extension of credit” within the

meaning of 18 U.S.C. § 894(a)(1). Section 894(a)(1) makes it

illegal to “knowingly participate[] in any way, or conspire[] to

do so, in the use of any extortionate means . . . to collect or

attempt to collect any extension of credit.” An extension of

credit is defined in 18 U.S.C. § 891(1): “To extend credit

means to make or renew any loan, or to enter into any agreement,

tacit or express, whereby the repayment or satisfaction of any

debt or claim, whether acknowledged or disputed, valid or

invalid, and however arising, may or will be deferred.”

The defendant contends that there was no extension of

credit within the meaning of the statute because Ferris neither

made a loan to his customers nor did he agree to defer payment

for his services. The defendant cites myriad cases from other

circuits to support his contention that in order to establish an

extension of credit, there must be an agreement, tacit or

express, to defer payment. See, e.g., United States v. Garcia,

135 F.3d 951, 955 (5th Cir.), cert. denied, 524 U.S. 961 (1998)

(marijuana dealer gave buyer time to pay balance of payment,

while indicating that interest was accruing daily); United

States v. Cassano, 132 F.3d 646, 650-51 (11th Cir.), cert.

denied, 525 U.S. 840 (1998) (agreement to defer repayment of

embezzled money); United States v. Bufalino, 576 F.2d 446, 452

-11-
(2d Cir. 1978) (defrauded jeweler accepted “lip service” from

the defrauder and by doing so, made an “extension of credit”);

United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir. 1974)

(unauthorized use of credit cards and an agreement whereby

repayment was deferred); United States v. Briola, 465 F.2d 1018,

1021 (10th Cir. 1972) (fraudulent bets with at least tacit

agreement).

We have held, however, that “[s]ection 891(1), defining

'extension of credit,' is very broad in its application and is

not confined to what is commonly known as a 'loan.'” United

States v. Sedlak, 720 F.2d 715, 720 (1st Cir. 1983); see

also United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.

1983) (“The definition of an extension of credit . . . was

generously drafted. . . . [and] has been even more generously

construed.”). In Sedlak, we also held that the victim's belief

that he owed money was not dispositive in the determination of

whether there was an extension of credit:

The fact that [the victim] did not believe
that he owed [the defendant/creditor] any
money is not dispositive of the issue. See
United States v. Cheiman, 578 F.2d 160 (6th
Cir. 1978) . . . , where the court found an
extension of credit existed even when the
victim was forced to sign an agreement to
pay a false claim.

Sedlak, 720 F.2d at 720.

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 Likewise, the Third Circuit held that “[t]he debt or

claim may be 'acknowledged or disputed, valid or invalid'. . .

. It may even be wholly fictitious.” DiPasquale, 740 F.2d at

1287 (internal citations omitted). It continued: “[T]he

agreement to defer repayment may be 'tacit or express'. A tacit

agreement may be implied from the circumstances surrounding the

creation of the debt.” Id. (internal citations and footnote

omitted). The court concluded:

[U]nder section 891(1), an agreement to
defer the repayment of a debt may be implied
from the debt, even if the debt is wholly
fictitious. When a self-styled creditor
appears before his 'debtor' and demands
satisfaction, the creditor posits both a
debt and the prior deferral of its
repayment. We believe that the definition
of an extension of credit encompasses this
type of transaction.

Id.

We find that there was an extension of credit in this

case. It is logical to infer, at the very least, that there was

a tacit agreement to defer repayment of a debt. Ferris provided

electrical contracting services to the victims. The parties did

not enter into a contract prior to the rendering of the

services. Once the services were provided and immediate payment

was not demanded, an extension of credit was established. It

would be unreasonable for the victims to have assumed that the

services were provided by Ferris at no cost. It would also have

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been unreasonable for them not to have expected a bill in due

course. In fact, bills were later presented to the customers

and eventually payment was demanded. When Ferris did not

receive payment, he contacted Cunningham for help in collecting

the debt. Cunningham, in turn, assigned the task of collecting

to the defendant.

The defendant relies heavily on three cases from other

circuits, see United States v. Wallace, 59 F.3d 333 (2d Cir.

1995); United States v. Stokes, 944 F.2d 211 (5th Cir. 1991);

United States v. Boulahanis, 677 F.2d 586 (7th Cir. 1982).

These cases, however, require more than is required in our

decision in Sedlak and the Third Circuit's decision in

DiPasquale and we decline to give them much weight in this case.

We need not reach the question of whether we adopt the Third

Circuit's rationale at this time because we find sufficient

indicia of agreement contained in the current facts to conclude

that an agreement to defer payment of the debts existed. We

find that there was a factual basis to support the charge that

there was an extension of credit and we hold that the district

court did not violate Rule 11(f).

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 We next address the defendant's contention that the

district court violated Rule 11(c) 2 of the Federal Rules of

Criminal Procedure because it failed to explain the meaning of

“extension of credit,” and therefore, he argues, the defendant

was not instructed on the nature of the charge. We find this

argument unpersuasive.

Rule 11 requires that a defendant who pleads guilty

must understand the nature of the charge. McCarthy v. United

States, 394 U.S. 459, 466 (1969). Understanding the charge is

one of Rule 11's “core concerns” and a violation thereof

mandates that the plea be set aside. United States v. Cotal-

Crespo, 47 F.3d 1, 4 (1st Cir. 1995). We do not apply a

“talismanic test,” but rather review the totality of the

circumstances of the hearing. Id. We have held:

What is critical is 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. At a minimum, Rule 11

2 Rule 11(c) states in pertinent part:

Advice to Defendant. 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
following:

(1) the nature of the charge to which
the plea is offered . . . .

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 requires that the trial court address the
defendant personally in open court to
ascertain that his plea is “voluntary and
intelligent.”

Id. at 4-5 (internal citations omitted). We continued: “In the

absence of a total failure to address one of Rule 11's core

concerns, the question is whether irregularities in the plea-

taking proceeding affected the defendant's 'substantial

rights.'” Id. at 5 (citation omitted).

We have held that the factors that may be used to

determine whether a plea should be withdrawn include: (1) the

defendant's reason for the withdrawal; (2) the timing of the

request; (3) whether there was a plea agreement; and (4) the

defendant's assertion, or lack thereof, of innocence. United

States v. Alvarez-Del Prado, 222 F.3d 12, 15 (1st Cir. 2000).

In this case, there was a plea agreement; in fact, there were

two plea agreements. The defendant argues that his plea should

be withdrawn because he did not understand the nature of the

charge. The defendant did not indicate in his first Rule 11

hearing that he did not understand the nature of the charge, and

did not do so in his second Rule 11 hearing. Likewise, the

defendant has never asserted his innocence, neither at the first

Rule 11 hearing nor at the second Rule 11 hearing. He did not

assert his innocence in his § 2255 petition and has still not

done so before us.

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 After careful review of the record, we find no

violation of the Rule 11 colloquy and find no reason to disrupt

the defendant's guilty plea. We note that the district court

read count seven of the indictment to the defendant at both Rule

11 hearings, and the defendant never indicated any confusion

with the charge read to him. At both Rule 11 hearings, the

defendant answered in the affirmative when asked if he actually

committed the offense charged. The government read a detailed

account of the facts and the defendant never indicated any

confusion. The defendant acknowledged to the court that he was

counseled by an attorney; in fact, he had two different

attorneys for his two Rule 11 hearings. Ultimately, the

defendant pled guilty twice to the same charged offense. We

find that the defendant was well aware of the nature of the

offense charged and knowingly and voluntarily pled guilty.

Finally, the defendant argues that he was the victim

of ineffective assistance of counsel when his attorney failed to

request a downward departure pursuant to U.S.S.G. § 4A1.3

because the defendant's “assigned criminal history category

significantly overrepresents the seriousness of his past

criminal conduct and the likelihood of recidivism.”3 The

3 In his brief, the defendant also claimed that he was
the victim of ineffective assistance of counsel because his
attorney did not seek a “role in the offense” reduction. This

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defendant did not address this precise argument in his § 2255

petition and does so for the first time on appeal to us. We

have repeatedly held that

“fact-specific claims of ineffective
assistance cannot make their debut on direct
review of criminal convictions, but, rather,
must originally be presented to, and acted
upon by, the trial court.” United States v.
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)
(citing cases). We have allowed exceptions
“only when the critical facts are not in
dispute and the record is sufficiently
developed to allow reasoned consideration of
the claim.” Id.

United States v. Bierd, 217 F.3d 15, 23-24 (1st Cir. 2000). It

is quite unlikely that the argument has been adequately

preserved and even on appeal it is advanced only in a minimal

way by a few sentences at the very end of the opening brief.

Nevertheless, even if the issue were adequately

preserved or could be raised under a plain error standard, there

is no basis for us on the present record to conclude that

counsel was ineffective for failing to raise the claim and still

less that there is any basis under the Strickland test for

believing that the result would have been different if a

downward departure had been sought. It is true that “a

sentencing court may invoke § 4A1.3 to depart downward from the

career-offender category if it concludes that the category

argument has since been withdrawn.

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inaccurately reflects the defendant's actual criminal history.”

United States v. Lindia, 82 F.3d 1154, 1165 (1st Cir. 1996).

But nothing yet put before us shows such a departure motion had

promise. On the contrary, the defendant not only had two prior

felony convictions but committed the final charged offense only

a year-and-a-half after he was released from prison but while

still on parole for federal drug trafficking.

III.

For the reasons set forth above, we find that the

district court did not err in accepting the defendant's guilty

plea

or when sentencing him.

Affirmed.

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